Not a Lexis Advance subscriber? Try it out for free.

Messner Vetere Berger McNamee, Schmetterer Euro Rscg v. Aegis Group Plc

Court of Appeals of New York

February 9, 1999, Argued ; March 25, 1999, Decided

No. 34,

Opinion

 [*231]  [**954]  [***675]    Smith, J.

This case presents us with two certified questions from the United States Court of Appeals for the Second Circuit regarding the adequacy at the pleading stage of a claim invoking the part performance exception to the Statute of Frauds.

 Plaintiff, Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc., commenced an action in Federal District Court against defendant, Aegis Group plc, seeking a declaratory judgment and damages for breach of contract based upon an alleged oral agreement pertaining to plaintiff's obligations under a commercial lease, which, plaintiff claims, Aegis orally assumed. On Aegis' motion, the District Court dismissed the complaint, concluding that Aegis' conduct was not "unequivocally referable to the oral agreement" and that plaintiff had failed to state a claim sufficient at the pleading stage to invoke  [*232]  the part performance exception to the New York Statute of Frauds (974 F Supp 270, 274-275). Finding that [****6]  the unresolved issues "concern[ed] the proper interpretation and application of New York's part performance exception to the Statute of Frauds" (150 F3d 194, 195), the Second Circuit certified the following two questions for this Court's review:

"I. Whether the part performance doctrine is adequately invoked at the pleading stage by a claim that the plaintiff 'took no action' with respect to a pre-existing written agreement, relying on an oral promise allegedly made by the defendant to the plaintiff that the defendant would act in place of the plaintiff and fulfill all of the plaintiff's obligations under that agreement.

"II. Whether the plaintiff's allegation of part performance by the defendant alone states a claim under the part performance doctrine" ( id., at 202).

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

93 N.Y.2d 229 *; 711 N.E.2d 953 **; 689 N.Y.S.2d 674 ***; 1999 N.Y. LEXIS 217 ****

Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc., Appellant, v. Aegis Group plc, Respondent.

Prior History:  [****1]  Proceeding, pursuant to NY Constitution, article VI, § 3 (b) (9) and Rules of the Court of Appeals (22 NYCRR) § 500.17, to review a question certified to the New York State Court of Appeals by order of the United States Court of Appeals for the Second Circuit. The following questions were certified by the United States Court of Appeals and accepted by the New York State Court of Appeals pursuant to section 500.17: "I. Whether the part performance doctrine is adequately invoked at the pleading stage by a claim that the plaintiff 'took no action' with respect to a pre-existing written agreement, relying on an oral promise allegedly made by the defendant to the plaintiff that the defendant would act in place of the plaintiff and fulfill all of the plaintiff's obligations under that agreement" and "II. Whether the plaintiff's allegation of part performance by the defendant alone states a claim under the part performance doctrine."

Disposition: Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of Practice of the New York State Court of Appeals, and after hearing [****2]  argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in the negative.

CORE TERMS

part performance, lease, Obligations, oral agreement, questions, doctrine of part performance, equitable, space, unequivocally, insisting, sublease, invoke, floor, parties, pleaded, rent

Business & Corporate Compliance, Contracts Law, Types of Contracts, Oral Agreements, Contracts Law, Affirmative Defenses, Fraud & Misrepresentation, General Overview, Civil Procedure, Responses, Defenses, Demurrers & Objections, Waiver & Preservation of Defenses, Statute of Frauds, Requirements, Performance, Lease Agreements, Oral Leases, Real Property Law, Deeds, Defenses Against Deed Enforcement, Statute of Frauds, Landlord & Tenant, Tenancies, Term Tenancies, Purchase & Sale, Contracts of Sale, Formalities, Standards of Performance, Substantial Performance, Commercial Law (UCC), Leases (Article 2A), Remedies, Specific Performance, Contract Formation, Consideration, Detrimental Reliance, Enforcement of Promises, Exceptions