SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1235 

CA 14-00504 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ. 

 

ETASAM, INC., PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

THE SYRACUSE ASSOCIATION OF ZETA PSI, INC., 

DEFENDANT-RESPONDENT, 

AND THE ASSOCIATION OF PHI GAMMA DELTA OF 

SYRACUSE, INC., DEFENDANT. 

 

ROBERT F. RHINEHART, SYRACUSE, FOR PLAINTIFF-APPELLANT. 

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KRISTEN M. BENSON OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

HANCOCK ESTABROOK, LLP, SYRACUSE (JAMES P. YOUNGS OF COUNSEL), FOR

DEFENDANT. 

 

Appeal from an order of the Supreme Court, Onondaga County

(Donald A. Greenwood, J.), entered August 5, 2013. The order, among

other things, granted the converted motion of defendant The Syracuse

Association of Zeta Psi, Inc. for summary judgment. 

It is hereby ORDERED that said appeal is unanimously dismissed

without costs.

Memorandum: Plaintiff, a not-for-profit corporation that

operates the Sigma Alpha Mu fraternity at Syracuse University,

commenced this action seeking specific performance of an alleged oral

lease with defendant The Syracuse Association of Zeta Psi, Inc. (Zeta

Psi). By way of background, Zeta Psi owns a fraternity house that it

rented to plaintiff in July 2007 pursuant to a written lease. The

lease was for a renewable five-year term, and was extended for one

year until July 31, 2013. On January 7, 2013, Zeta Psi notified

plaintiff in writing that it elected not to renew the lease. Zeta Psi

thereafter discussed with plaintiff the possibility of signing a new

lease. At the same time, Zeta Psi negotiated with other fraternities

interested in renting the premises, including defendant The

Association of Phi Gamma Delta of Syracuse, Inc. (Phi Gamma Delta). 

Plaintiff alleges that, on February 13, 2013, a member of its

board of directors reached an oral agreement with Zeta Psi’s vicepresident whereby plaintiff would lease the premises for an additional

two years. The parties did not, however, execute a written agreement. 

Approximately one month later, Zeta Psi signed a written lease with
-2- 1235 

CA 14-00504 

Phi Gamma Delta. On March 28, 2013, while still in possession of the

premises, plaintiff commenced this action, alleging, inter alia, that

Zeta Psi never intended to sign a new lease with plaintiff and

intentionally misled plaintiff for a variety of reasons, all rooted in

bad faith. The complaint requested specific performance of the

alleged oral lease between the parties. 

Upon commencing the action, plaintiff moved by order to show

cause for a preliminary injunction. Zeta Psi responded with a preanswer motion to dismiss, which Supreme Court converted to a motion

for summary judgment, and plaintiff thereafter served an amended

complaint adding Phi Gamma Delta as a defendant. The court granted

Zeta Psi’s motion for summary judgment and denied plaintiff’s motion

for a preliminary injunction, concluding, inter alia, that the alleged

two-year oral lease was barred by the statute of frauds (see General

Obligations Law § 5-703 [1]). Although plaintiff filed a notice of

appeal, it did not seek a preliminary injunction from this Court

pursuant to CPLR 5518. Thus, while this appeal was pending,

plaintiff’s written lease expired, whereupon plaintiff vacated the

premises and Phi Gamma Delta took possession pursuant to its valid

lease with Zeta Psi. 

We agree with Phi Gamma Delta that the appeal should be dismissed

as moot because plaintiff “did not seek injunctive relief or make any

other attempts to preserve the status quo during the pendency of [its]

appeal” (Matter of Graf v Town of Livonia, 120 AD3d 944, 944; see

Matter of Yeshiva Gedolah Academy of Beth Aaron Synogogue v City of

Long Beach, 118 AD3d 901, 902; Cuevas v 1738 Assoc., L.L.C., 111 AD3d

416, 416; Matter of Wallkill Cemetery Assn., Inc. v Town of Wallkill

Planning Bd., 73 AD3d 1189, 1190-1191; cf. Matter of Pyramid Co. of

Watertown v Planning Bd. of Town of Watertown, 24 AD3d 1312, 1313, lv

dismissed 7 NY3d 803). In any event, even if plaintiff had sought the

appropriate injunctive relief pursuant to CPLR 5518, and even

assuming, arguendo, that an issue of fact exists whether Zeta Psi

should be equitably estopped from asserting the statute of frauds

defense, the record establishes that plaintiff and Zeta Psi had, at

most, an agreement to agree, which is unenforceable (see Joseph

Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109-110; Plumley

v Erie Blvd. Hydropower, L.P., 114 AD3d 1249, 1249-1250). 

Entered: November 21, 2014 Frances E. Cafarell

Clerk of the Court