PENNINO v. LASERSURGE, INC

Order unanimously reversed on the law without costs, motion denied and first and second causes of action reinstated. Memorandum: Supreme Court erred in granting defendants partial summary judgment dismissing plaintiff's first and second causes of action. In the first cause of action plaintiff seeks a declaration that he is owner of 5% of defendant Lasersurge, Inc. In the second cause of action plaintiff seeks to compel specific performance of the issuance of 5% of the corporate stock. Although there is no written agreement in support of those causes of action, there is a question of fact whether plaintiff's payment by check to defendant Sauer of $2,250 for one share of Lasersurge, Inc. and plaintiff's intention to purchase an additional four shares is sufficient to avoid the Statute of Frauds (see, UCC 8-319 [b]; Palmerton v Envirogas, Inc., 80 A.D.2d 996, 997; APS Food Sys. v Ward Foods, 70 A.D.2d 483). The order in the second appeal, denying plaintiff's motion to reargue, is not appealable (see, Gifaldi v Dumont Co., 172 A.D.2d 1025; Empire Ins. Co. v Food City, 167 A.D.2d 983).