That all that the defendant did after the fire was to employ a "few men to take down a part of the walls, which were considered dangerous as they stood. That, without indicating what he would do himself under the covenant, he applied to the plaintiffs upon several occasions to know what they would do about the lease, and stated to them that it would be much better for him to take down the building and erect a more modern •one in a better style, which would command a better rent, and asked if he did so, if they would be willing to pay a higher rent; hut the plaintiffs declined to enter into any such arrangements, and as during two-thirds of the time that had elapsed from the happening of the fire, nothing had been done, and as no materials had been brought to the premises for repairing the building, the plaintiffs, after nearly two months had elapsed from the time of the fire, commenced this suit to compel the defendant to perform his covenant to repair. The equitable relief asked for in the complaint was, that the defendant should be adjudged to perform his covenant; • that the plaintiffs might be authorized to expend the rent accruing under the lease in repairing the damages occasioned by the fire; that the defendant might in the meanwhile be restrained from taking any proceed*429ings to enforce the payment of the rent, or to disturb the plaintiffs’ possession; and that a receiver should be appointed, to whom the plaintiffs could'pay the rent, that it might be applied towards the making of the repairs, and that such repairs should be made under the direction of the receiver, if the defendant neglected to proceed with due diligence to make them that is, as I infer, if he should not proceed after the court had decreed the <mask> of the contract.


On November 2, 1959, petitioners received the purported demand for arbitration which contains the following statement of the claim or relief sought: ‘1 <mask> of the contract dated November 18, 1956 entered into by all parties mentioned in said contract, or in lieu thereof, payment of all damages sustained by the persons or firm aggrieved by such breach, and *1079for such other and further relief as may be determined, together with all costs and disbursements in this proceeding.”


These conclusions ring true in this action as well. The facts in this case are on all fours with 101123 LLC, and are distinguishable from the facts in S.E.S. for the reasons described in 101123 LLC. Accordingly, the First Department’s conclusion that allowing <mask> “would be tantamount to providing carte blanche to buyers to evade limited remedies provisions by the use of delaying tactics based upon unwarranted construction of contract provisions, the tie-up of property, and the institution of meritless litigation intended to ensure sufficient passage of time for evaporation of title deficiencies” is equally applicable to this action (id. at 112 [internal quotation marks and citation omitted]).


Neither of these points need long detain us. On the first point, a complaint alleging that a contract is void under Government Code section 1090 involves, by definition, the issue whether the contract is valid and enforceable. And this is true regardless of whether the complaint also alleges specific contract claims or demands <mask>. In a case initiated by such a complaint, a party's entitlement to attorney fees under section 1717 turns on the fact that the litigation was about the existence and enforceability of the contract, not on the presence of particular contractual claims or a request for specific performance. (See Arthur L. Sachs, Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 322, 198 Cal.Rptr. 483 ["Whether an action is based on contract or tort depends upon the nature of the right sued upon, not the form of the pleading or relief demanded.... ¶ In the final analysis we look to the pleading to determine the nature of plaintiff's claim."].) We find no basis to conclude that Eden Township 's holding that a suit seeking to declare a contract void under Government Code section 1090 is an action on a contract applies only in cases in which other contract claims are alleged or specific performance is demanded.


Arrangements to transfer title to Bohlen were abruptly halted when Lange filed a lis pendens and commenced suit against plaintiff for <mask>. Supreme Court *556held in favor of plaintiff. A further delay ensued because of Lange’s appeal which was eventually dismissed by the Appellate Division. The delay caused by these lawsuits set back the transfer of title to Bohlen by about 16 months.


*548The learned counsel for the appellant seems to think it was necessary to show the contemplated act, one which would occasion, injury, and that none was shown nor was it demonstrated that irreparable damage would result from the act designed; which was necessary in order to entitle the plaintiff to the injunction sought. This may be regarded as the general rule. (T. and B. R. R. Co. v. B., H. T. and W. R. R. Co., 86 N. Y. 107.) But courts of equity very frequently grant injunctions in the nature of a <mask> to restrain the violation by a tenant of his agreement. (Eden on Injunctions [1st Am. ed,], and eases cited; Tayloi’s Land, and Ten.,, pp. 329, 330.)


The plaintiff vendees sued for <mask> of the contract and money damages for the breach thereof. By way of alternative relief, plaintiffs also sought a vendee’s lien for the amount of their contract down payment plus the net title charges. At the trial before the court without a jury, both parties stipulated to the entry of the judgment granting specific performance. The court then took testimony on the question of whether there had been an anticipatory breach of the contract on the part of the defendant resulting in damages, and determined that there had been no breach (Gittlits v. Lewis, 28 Misc 2d 712). No evidence was taken at the trial on the question of whether the defendant would be able to convey title in accordance with the terms of the contract, since this was not an issue raised by the pleadings. As a consequence, the question of whether plaintiffs would be entitled to a vendee’s lien was not determined.


In the case of Muck v. Hitchcock (149 App. Div. 323, supra) an action for <mask> was brought against a church to compel the conveyance of property which defendant had agreed to sell pursuant to a written contract. The Appellate Division there held that the trial court erred in holding that specific performance could not be directed against a religious corporation where no order had been obtained prior to the execution of the contract. The Appellate Division, however, did not direct specific performance but ordered that the defendant return to the plaintiff the consideration paid under the contract. Thereafter, the Court of Appeals reversed the Appellate Division (212 N. Y. 283) solely on the ground that the Religious Corporations Law did not apply to a foreign religious corporation. Clearly, the language employed by the Appellate Division in that case was dictum, and there is no appellate authority sanctioning specific performance against the will of the corporation.


The trial court could not award Sharifan both <mask> and monetary damages for Yazdani's contract breach. See Haile , 522 S.W.3d at 685 ; Stafford , 231 S.W.3d at 535. We must reconcile the apparent conflict that Sharifan was entitled to both specific performance and damages, if reasonably possible. One indication the trial court was awarding the remedy of damages and not specific performance is that the court concluded that, whatever other remedies or claims might have been available or requested, "all such other remedies" were moot where Sharifan elected to recover under his breach-of-contract claim and should recover "a money judgment." Another indication the trial court was awarding damages and not specific performance is that the court did not compel any performance by Sharifan. See Woody v. J. Black's, LP , No. 03-15-00293-CV, 2016 WL 3677241, at *3 (Tex. App.-Austin July 7, 2016, no pet.) (mem. op.) ("[A] court's order of specific performance of a contract must compel performance by both parties, rather than ordering only one party to specifically perform.").


The exchange of letters between the two firms of attorneys did not create any understanding that is decisive of these motions. The court will not issue a restraining order as a method of compelling <mask> of the alleged agreement between the attorneys and neither will the court on the basis of such an agreement interfere with a party’s selection of the attorneys of her choice who have expressed their willingness to act for her.


Based upon the foregoing “Agreed Statement,” and the accompanying exhibits, this court finds that the plaintiff buyer (hereinafter buyer) is not entitled to <mask>. The dishonor of the buyer’s check resulted in a *1029failure of payment of the contractually required deposit. This nonpayment resulted in failure of an essential condition, a failure of consideration, and a material breach of the contract, thus excusing the performance of the defendant seller (hereinafter seller) and entitling the seller to terminate the agreement between the parties.


I deem it unnecessary, from the view which I have taken of this case, to examine how far a complainant can have a decree for the <mask> of a contract different from that prayed for in his bill. It appears to be consistent with sound reason and adjudged cases, that if a complainant file his bill for the specific execution of a contract materially different from that entered into, the defendant is justified in equity in opposing its execution, and the complainant on that bill ought not to have a decree for the agreement set up and admitted in the defendants answer. The case in 2 Vesey, 299, fully supports these propositions; it was for a specific execution of a contract. The defendant set up in his an? swer and proved by paroi (as has been done in this case) a different contract from that in the bill: Sir John Strange, master of the rolls, in giving his opinion on that case on the point now under consideration, says : “I am still of *656the same opinion, and that the bill should be dismissed with costs; for it would be very hard upon a defendant, if a plaintiff should unjustly bring him into a court of equity, where defendant should insist on an agreement different from that which the plaintiff sets up, and the plaintiff should reply to the answer and insist on his former demand, and go into long proofs, and afterwards, finding he cannot have the decree prayed for by his bill, should resort to that which the defendant sets up, and insist on a decree for it.”


A previous suit for <mask> of this agreement was resolved in favor of the defendant upon the firiding that title was in the name of defendant and his wife. Since the wife had not made an agreement to sell nor was she estopped to deny such an agreement, specific performance could not be decreed against both husband and wife as prayed for in the complaint.


It would, of course, be difficult to enforce a <mask> of the agreement to make a will, and thus secure to the plaintiff the one-half of the deceased property, and the use of the other one-half thereof to the plaintiff during her natural life. But it is not difficult to see that in a court of equity the action might be retained and damages given. Plaintiff was entitled to relief without stopping to speculate upon the name to be given to the action. ( Wright v. Wright, 54 N. Y., 443.)


I am asked to try, in this proceeding, between a per*622son over whom this court has no control and another whose official acts are mainly subject to its jurisdiction, a question of fact in the nature of a fraud. If entertained, it would have to be tried either upon affidavits —-a very unsatisfactory means of arriving at the truth -—or by the oral examination of witnesses. The parties would thus be deprived of a trial by jury of an important matter, and with which, of all others, a' jury is supposed to be most competent to deal. In effect, this; proceeding involves points pertaining to the nature of an action for <mask>, in so far as a knowledge, or want of knowledge, by the petitioner, of the order for the removal of the building, or buildings, is concerned. If he had such knowledge, before the sale, Ms excuse for non-fulfilment of Ms contract would fail, and he would be obliged to consummate it. Otherwise, he would be successful. I look in vain for any power given, either directly or by necessary implication, wMch will warrant this court to try such a case. *623and award damages for the neglect of an execntor to fulfil snch a contract. The legislature has never, hy any act which has come under my observation, manifested an intention to invest it with power so large, or to impose upon it a duty so onerous.


Note.—The opinion of the vice-chancellor, Willard, is the only one which discusses the merits of this case. And he held, that the party who seeks the *759aid of a court of equity, in enforcing a <mask> of a contract, holds the affirmative, and must make out a case entitling him to the relief sought. And must show, 1st. That the legal remedy is inadequate; and that, without a specific performance, injustice will be done, or irreparable injury produced. And, 2d. That the contract is fair, just, and reasonable, equal in all its parts, founded on an adequate consideration, and free from fraud, misrepresentation, or surprise.


We think, however, the view most consonant with the purpose to be accomplished is that anticipatory, preparatory, collateral, and ancillary acts are generally not sufficient part performance to call for an exception to the provisions of the statute of frauds; ... but that some acts done in reliance upon a sufficiently established verbal agreement to convey, and done with the knowledge of the other party to the agreement ... may be so disastrous in their consequences to the one performing as to imperatively call for <mask> of an oral agreement. 247 S.W.2d at 825 (emphasis added).


A contrary result was reached in Brindisi v. Stallone (259 App. Div. 1080, 1081). . That suit was for <mask> of a contract by the defendants’ decedent to leave all of his property to plaintiff. The Appellate Division (Second Department) reversed, on the law and the facts, the judgment rendered below and remitted the matter to Special Term to take further proof in accordance with the memorandum decision. Insofar as is here relevant, the court said: ‘ ‘ The judgment properly con*928fined the widow’s interest to her exemption rights under section 200 of the Surrogate’s Court Act. When the present widow married the decedent in 1931, at which time the present provisions in the Decedent Estate Law were operative, the decedent prior thereto, in good faith, had obligated himself, for a valuable consideration, to leave all his property to the plaintiff. The present widow, therefore, married the decedent under circumstances that were equivalent to marrying a man who possessed no property that was subject to devolution at his death. The widow, under the statute, had only an expectant interest which was subject to the contingency that the decedent had not in good faith sold or given away or completely encumbered his property in his lifetime. Here, in good faith, prior to his marriage to the present widow, he had obligated himself to plaintiff so as to deprive anyone else of the right to enjoy his property. Therefore, nothing was possessed by the decedent to which the otherwise expectant interest of the widow could attach. The same would be true if, instead of this contract obligation to convey all the property to the plaintiff, there had existed a debt in a sum greater than the decedent’s entire estate. The provisions in the Decedent Estate Law for the benefit of a surviving spouse attach only to such property of a decedent as remains after performance of his obligations and payment of his debts, assuming, of course, that good faith is present throughout.”


Shortly before that email was sent, on April 28, 2015, after discovering that defendants had entered into the contract with Rubin for the sale of same property that was the subject of the contract with them, by their present attorney, the Law Office of *589Jeffrey Fleischmann PC, plaintiffs filed a notice of pendency and commenced this action against defendants. Plaintiffs’ complaint alleges a first cause of action for <mask> of the contract, a second cause of action for a declaratory judgment that defendants willfully and materially breached the contract and that they are required to schedule a closing date under the contract as soon as practicable, a third cause of action awarding them compensatory and consequential damages against defendants, and a fourth cause of action, as an alternative to specific performance, awarding them a vendee’s lien for the deposit and any additional funds paid to them of no less than $34,000.


Defendants initially contend that the Statute of Frauds does not operate as a bar to their counterclaim for <mask>. The Statute of Frauds provides that an agreement to convey an estate or interest in real property is unenforceable unless it is in writing and subscribed by the party to be charged (see, General Obligations Law § 5-703). To satisfy the Statute of Frauds, "a memorandum, subscribed by the party to be charged, must designate all parties, identify and describe the subject matter and state all of the essential terms of a complete agreement” (Conway v Maher, 185 AD2d 570, 572).


*810The New York annotations to the Restatement state that the section is in harmony with the New York law and as illustration cite the fact that the assignee of a vendee under a contract for the sale of land may enforce <mask> of the contract hy the vendor (Epstein v. Gluckin, 233 N. Y. 490), while the vendor is denied that remedy against the assignee who has not assumed the terms of the agreement (Langel v. Betz, 250 N. Y. 159). Further exemplification of this conclusion is the fact that the holder of an option to purchase land may enforce specific performance by the vendor (Crocker v. Page, 210 App. Div. 735, affd. 240 N. Y. 638), and specific performance may be decreed in favor of a vendee who had the privilege of rescinding if a certain condition precedent did not come into being and he waived the condition (Catholic Foreign Mission Soc. v. Oussani, 215 N. Y. 1).


What is an equitable adoption? The courts in New Jersey do not specifically use that term, although others, who have interpreted the laws of New Jersey have described the applicable doctrine as an “ ‘equitable adoption’.” (Matter of Jarboe, 235 F Supp 505, 507.) Using the language of a leading case in New Jersey, the rule applied is best stated as follows: “[A]n oral agreement to adopt, where there has been a full and faithful performance on the part of the adoptive child but which was never consummated by formal adoption proceedings during the life of the adoptive parent, will, upon the death of the latter and when equity and justice so requires, be enforced to the extent of decreeing that such child occupies in equity the status of an adopted child, entitled to the same right of inheritance from so much of his foster-parent’s estate that remains undisposed of by will or otherwise, as he would have been had he been a natural born child.” (Burdick v Grimshaw, 113 NJ Eq 591, 595.) Therefore, the doctrine to be applied is an oral, written or implied contract right which is enforced in equity (Burdick v Grimshaw, supra; Ashman v Madigan, 40 NJ Super 147; Hendershot v Hendershot, 135 NJ Eq 232). By granting <mask> the court of equity is “considering as done that which ought to be done” *646(Burdick v Grimshaw, supra, p 596). As a result the term equitable adoption is a shorthand way of describing an equitable result. However, each of these cases involved a claim by or on behalf of the alleged adopted child against the alleged adoptive parent’s estate. No case from the courts of the State of New Jersey has been cited, found by this court or referred to by objectants’ expert witness, who is a former Judge in New Jersey and leading authority in this area of the law, which decides the issue of whether the contract can be enforced by others, so as to permit the relatives of the alleged adoptive parent to inherit from the alleged adoptee. The testimony of-this expert witness, referring to the above cases as well as others in the New Jersey courts, was that a court in New Jersey would permit the relatives of the adoptive parent to inherit. However, that issue was never decided therein and there are no dicta which so indicate.


The form of the summons prescribed in the Code makes a distinction between cases for the recovery of money only and those where other relief is sought (Code, § 129); and in the former the plaintiff may take judgment in case the complaint is unanswered, for the amount mentioned in it (§ 246), thus requiring the complaint to state the amount claimed. In all actions for the recovery of money, a jury trial is a matter of right (§ 253), and amendments to pleadings are limited to those consistent with the case in the complaint (§ 275.) Possibly these provisions may deprive the plaintiffs, where they have given notice in their summons that the relief sought by them is the recovery and payment of money, and demanded such relief in *462their complaint, of the right of so amending their pleadings as to change their case, so far as to the relief sought, as to deprive the defendant of the right of trial by jury. If so, it will be necessary to examine how far such inviolable right of trial by jury has deprived the plaintiffs of a right to equitable relief by decreeing the payment of the purchase-money to them when they have only established a conditional right to the purchase-money on making a good title and conveying it to the defendants. The only difference between the judgment of a court of law for the purchase-money of land, and the decree of a court of equity for the same, always was, that the latter -permitted and required the vendor to make a good title before he was entitled to such money. In the former case, the vendee, upon paying the purchase-money on' the judgment, was left to his remedy of filing a bill for <mask>. (Richards a. Edick, 17 Barb., 260 ; 4 T. R., 781; 5 Ib., 366.) I find it, therefore, impossible to conceive how the clogging of the plaintiff’s demand for relief, with any of the conditions imposed by a court of equity, can make the action at all the less one for the recovery of money and one requiring a jury trial. Such conditions are for the vendee’s benefit, and should be claimed by him. There is nothing which calls for the plaintiffs’ offering to do such acts; they are imposed by the court as conditions of granting relief.


This complaint states a good cause of action against defendant for breach of its contract of insurance with the plaintiff. There are no cases on the precise question in this jurisdiction. There is certainly no precedent for requiring a policyholder to bring this action in equity for <mask>. In fact, it is questionable whether such an action would lie as it seems obvious that the plaintiff has an adequate remedy at law.


On November 18, 2016, plaintiffs filed their initial complaint. On February 10, 2017, plaintiffs filed the operative first amended complaint asserting causes of action for (1) fraud and deceit; (2) breach of oral contract; (3) declaratory relief; (4) rescission of the MTA; (5) breach of the MTA; (6) breach of the implied covenant of good faith and fair dealing; (7) negligence; (8) negligent misrepresentation; (9) breach of fiduciary duty; (10) quantum meruit; (11) constructive fraud; and (12) <mask> of the oral agreement. Jury trial began on December 7, 2018. Defendants requested that the trial be transcribed, but their counsel failed to arrange to have a court reporter present for the first afternoon of trial proceedings. Thus, the voir dire of the jury, the trial court’s initial jury instructions, the opening statements, and a portion of Andrejich’s direct testimony were not transcribed. 5


The courts have relied on the statutory provisions described above to hold that even where a party has entered into an arbitration agreement, that party may file a complaint in superior court seeking resolution of a dispute potentially subject to the arbitration agreement. In Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1795-1796, 13 Cal.Rptr.2d 678 ( Brock ), the court explained: "A party to a contractual arbitration agreement may compel a recalcitrant party to comply with a valid agreement by means of a petition pursuant to section 1281.2, which is in essence a suit in equity to compel <mask> of the arbitration agreement. [Footnote omitted.] [Citation.] [¶] But as this court recognized long ago, contractual arbitration is in no sense ... a usurpation or ouster of the judicial power vested in the trial court of this state by our Constitution. ( Snyder v. Superior Court (1937) 24 Cal.App.2d 263, 267 [74 P.2d 782].) As a result, there is nothing to prevent one of the parties to a contractual arbitration provision from resorting initially to an action at law . ( Spence v. Omnibus Industries (1975) 44 Cal.App.3d 970, 975 [119 Cal.Rptr. 171] [ ( Spence ) ]; Ross v. Blanchard (1967) 251 Cal.App.2d 739, 742-743 [59 Cal.Rptr. 783].) The other party, if determined to pursue arbitration, must then take action to compel arbitration. ( Spence , supra , 44 Cal.App.3d at p. 975 [119 Cal.Rptr. 171].) 'A right to compel arbitration is not ... self-executing. If a party wishes to compel arbitration, he must take active and decided steps to secure that right, and is required to go to the court where the [other party]'s action [at law] lies.' ( Gunderson v. Superior Court (1975) 46 Cal.App.3d 138, 143 [120 Cal.Rptr. 35].) Consequently, the party seeking to enforce the contractual arbitration clause must file the section 1281.2 petition in the action at law (or raise it as an affirmative defense in the answer) or else the right to contractual arbitration is waived." (Italics added; see also Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 44-45, 12 Cal.Rptr.3d 711 [quoting Brock ].)


The Court of Errors reversed the decision; the court holding, that the appellants having gone on the land, and under the written memorandum, made improvements, that was a sufficient part performance of the agreement to take it out of the statute; and that, although the memorandum of the agreement was uncertain in its terms, yet, as a part performance was made the basis of the claim to a <mask> of it, parol evidence might be connected with the memorandum in writing, for the purpose of making out the contract; and there being satisfactory evidence of an agreement, independently of the memorandum, the conduct of the respondent was held to be unfair, and such a fraud • on the appellants, as to justify a decree for a specific performance.


The allegations relative to <mask> and to impress a trust do not necessarily create additional causes of action if they serve as links in the statement of plaintiff’s claim that he has an equitable interest in the property which is a prerequisite to his maintaining an action under article 15 (Karp v. Twenty-Three Thirty Ryer Corp., 185 Misc. 440; Real Property Law, § 500, subd. 4). It appears, however, that they go beyond such purpose since, following allegations appropriate for specific performance, it is alleged in paragraph 13 of the complaint, among other things, “ that except for provisions of Article 15 of the Real Property Law of the State of New York, plaintiff has no other adequate remedy. ’ ’ Such allegation is not required in a complaint brought pursuant to article 15 (Real Property Law, § 502) but is a requisite allegation to obtain specific performance (Terner v. Glickstein & Terner, 283 N. Y. 299; Simmons v. Kelly, 195 N. Y. S. 2d 425). And in paragraph 17 it is alleged that by virtue of the conveyance to the defendant wives “ a trust has resulted in accordance with the provisions of section 94 of the Real Property Law in favor of the plaintiff herein to the extent necessary to satisfy his just claim for a transfer of the title of the property to him in accordance with the further allegations herein contained.” This too is an unnecessary allegation *235in an action brought pursuant to article 15. Under that article the court is authorized to adjudicate only existing rights of parties and cannot direct transfer of legal title by the defendants to the plaintiff (Gifford v. Whittemore, 4 A D 2d 379, 384). Hence, under the allegations of the complaint, plaintiff might properly seek in addition to a declaration of rights under article 15, a judgment decreeing specific performance and also impressing a trust on the property to the extent necessary to satisfy plaintiff’s claim; and this is so notwithstanding the allegation in the complaint that the action is brought pursuant to article 15 since said allegation is required in order to obtain relief thereunder as provided in section 502 of the Real Property Law.


In order for the court to make an assessment of the amount of damages due to the plaintiffs in the default judgment and whether <mask> should be granted, the court shall conduct an inquest on submitted papers. The plaintiffs shall submit to the court and opposing counsel their documentation on damages within 30 days of the date of filing of this decision. The defendant shall submit opposition papers within 45 days of the date of this decision. The plaintiffs shall submit any reply papers within 60 days of the date of filing of this decision.


The complaint sets forth three causes of action. The first cause alleges, in effect, that all parties reside in New York State; on January 28, 1958, and at all times mentioned, the defendants Argendorf owned certain real property in the town of Evans, County of Erie, New York; on January 25, 1958, the plaintiff entered into an oral contract with defendants Argendorf for the purchase of certain standing timber on said premises, “up to 60,000 board feet for the sum of Twenty Five Dollars ($25.00) per thousand on timber of 14 inches or over on the stump and for which the plaintiff made a down payment of One Hundred Dollars ($100.00), the balance to be paid according to the scale slips of lumber cut and removed with all timber to be removed within four months of the date of the contract; and further, for all amounts of timber in excess of 60,000 board feet to pay to the defendants the amount of Twelve Dollars and Fifty Cents ($12.50) per thousand;” cutting could commence immediately and the plaintiff entered into an oral agreement with defendants Goetzman and Janas for the sale of said timber “ on similar terms and conditions as with defendants Bernard Argendorf and Mary Argendorf ” at the price of $37 “per thousand; ” defendants Goetzman and Janas, on January 26, 1958, commenced cutting said timber; on February 7, 1958, defendants Argendorf ordered the plaintiff to cease cutting; the plaintiff partially performed said oral agreement and is *600ready, willing and able to perform it; defendants Argendorf refuse to perform; and “plaintiff has no adequate remedy at law.” The prayer for relief is for <mask> and injunction.


The question submitted to the court is whether the plaintiffs are entitled to a <mask> by the defendant of the contract of sale made by him and them. No question is made but that a valid power of sale of the real estate of the testatrix was properly granted by her will to the executors therein named, nor that the devise in trust of the real estate for the purpose of executing the power was conferred as a power in trust. (1 R. S. [Edm. ed.], 681, 682 et seq., %% 72, 74, 77, 94, 106.)


If the attempted exercise of the options was a “ claim ” within the meaning of SCPA 1808 and 1810, the executors’ position would have merit. However, those sections relate to claims by creditors against an estate. (3 Warren’s Heaton, Surrogates’ Courts [6th ed.], § 270, par. 1.) They do not apply to claims to specific personal property in the possession of the estate. (Matter of Kellas, 38 N. Y. S. 2d 197.) That the instant action falls within the latter category is evidenced by the fact that the relief sought in the complaint is .for <mask> and not for money damages. Claims to specific personal property in the possession of a fiduciary are governed by SCPA 2105 and the remedies provided thereunder are separate and distinct from those contained in section 1808. (Matter of Kellas, supra.) Subdivision 1 of SCPA 2105 provides that “A person having a claim to specific money or personal property * * * alleged to be in the possession of * * * a fiduciary may present to the court from which letters were issued * * * a petition *953showing the facts and praying that the fiduciary be required to show cause why he should not be required to deliver the specific money or personal property Despite the language of this section, it has been held that former section 206-a of the Surrogate’s Court Act, which was the predecessor to SCPA 2105, did not deprive the Supreme Court of concurrent jurisdiction to entertain such claims. (Bradley v. Roe, 257 App. Div. 1005, revd. on other grounds 282 N. Y. 525; Broder v. Broudarge, 38 N. Y. S. 2d 282.) Inasmuch as SCPA 1808 is inapplicable to the claims herein, they are governed, not by the 60-day Statute of Limitations contained in SCPA 1810, but by the period of limitations operative for SCPA 2105, that is, those contained in the Civil Practice Law and Rules. (Matter of Equitable Life Assur. Soc. of U. S. v. Branch, 32 A D 2d 959.) This being an action for specific performance, the applicable period of limitations is six years (CPLR 213). The supplemental complaint having been served well within that period, the court finds that the action is not time-barred.


“ The rule which courts of equity have adopted in suits for the <mask> of contracts requires that the contract be established by competent and satisfactory proof, to be clear, definite and certain, for the reason, as Judge Stoet expresses it, that a court of equity £ ought not to act upon conjectures,’ and if the proof should end in leaving the contract uncertain, so that the court cannot say what its precise import and limitations are, a decree for a specific performance will be withheld.” Lobdell v. Lobdell, 36 N. Y. 327. The agreement under consideration seems to meet every requirement of the rule adopted by courts of equity. The decreeing of a specific performance of the contract imposes no hardship or injustice upon the defendant, while the denial of such a decree would operate as a fraud upon the plaintiffs. They executed every part of their agreement, in confidence that the other party would do the same. To permit such other party, or his heirs, now to withdraw from the performance of the contract would aid a manifest fraud against the plaintiffs. It appears from the evidence that there was never any desire or intention manifested by the father of the parties to this action, with whom the agreement was made, to avoid its performance or defeat its operation. It is found as a matter of fact, upon competent and sufficient evidence, by the learned trial court “ that Abraham Korminsky, in pm-suance of said agreement, made a last will and testament, wherein and whereby he devised said premises to plaintiffs, but that said will had been lost or destroyed, and plaintiffs have been unable, after diligent search, to find the same.” All the other heirs except the defendant, not parties to the agreement, have conveyed to plaintiffs all the interest in said premises which may have descended to them as heirs at law of Abraham Korminsky, without consideration, and for the purpose of carrying out the agreement in question.


A memorandum of sale is no less a contract because the parties contemplated the execution of a more formal instrument. (McTague v Conroy, 133 Misc 312, affd 227 App Div 745.) Whether the parties to an informal agreement become bound prior to the drafting and execution of a contemplated formal writing is basically a question of their intent to become or not to become bound. (Gridley & Sons v Northeastern Cons. Co., 36 AD2d 1001; Arnold v Rothschild’s Sons Co., 37 App Div 564, affd 164 NY 562.) In the instant case, the plaintiff paid a $1,000 deposit for the right to purchase certain real property and the defendant accepted the deposit, thereby incurring an obligation to convey the property. The written agreement together with the testimony at trial indicate that the parties contemplated no further negotiations or agreement upon any essential terms and thus, the agreement is binding, notwithstanding the provision for future formalization. (Karson v Arnow, 32 Misc 2d 499.) All of the essential elements of the transaction, including the price, the property to be sold and the date of sale, were stated in the memorandum, evidencing a meeting of the minds. Had the vendor sued for <mask> the court could have imposed reasonable nonessential terms, since the parties agreed upon the essential terms. (Berman Stores Co. v Hirsh, 240 NY 209; 1 Williston, Contracts, § 48.) Consequently, this court finds that although no formal contract of sale was entered into, the memorandum signed by the parties herein constitutes a binding agreement between the parties.


There is still another view. The agreement between Mrs. Swan and the plaintiff was acted upon by him. He took possession of the servitude granted to him, and expended money by putting down the water pipes. He was in a position, therefore, to enforce against her <mask> of her agreement. He could require the execution of a proper conveyance, if the one produced was not valid. The same rights which he had against her he would have against Snell and the defendant, who took their deeds with knowledge of the plaintiff’s equity.


We further conclude that the court properly granted petitioner’s motion for summary judgment seeking <mask> of the stipulation. To the extent that respondent’s arguments in opposition to the motion concern the affirmative defenses that were stricken by the court in an earlier order, *1008those arguments are not properly before us. Respondent also argues that there are questions of fact precluding summary judgment. That argument concerns the distribution of the proceeds of the sale, however, and the "judgment and order” on appeal provides that distribution of all proceeds will be determined by further order of the court. Thus, any argument with respect to distribution is premature. (Appeal from Order of Monroe County Surrogate’s Court, Ciaccio, S.—Summary Judgment.) Present—Pine, J. P., Lawton, Wesley, Callahan and Doerr, JJ.


Harvey defends this action claiming that plaintiff cannot have a money judgment because plaintiff is not personally obligated to pay the obligations of Arista and, therefore, has suffered no damage. Harvey also claims that an action for <mask> will not lie because, under the agreement, Harvey’s obligation to pay the debts of Arista does not arise until the creditors obtain a judgment against Arista. If Harvey merely agreed to indemnify the plaintiff, these contentions might be correct. But the provisions of the August 8 agreement (whereby Harvey agreed to exercise his power as the sole stockholder of Arista to have Arista satisfy the debts of Arista and that if Arista failed to satisfy its debts, Harvey would personally assume and satisfy them) made Harvey more than an indemnitor. By this agreement Harvey undertook a positive obligation to assume the debts of Arista (Trinity Church v. Higgins, 48 N. Y. 532); he became a guarantor of payment of those debts.


Chronologically, Justice Irving Kirschenbaum, in Emanuel v 306 West 92nd St. Corp. (NYLJ, July 22, 1981, p 11, col 2) denied tenant’s motion for a preliminary injunction in an underlying action for <mask> where landlord claimed “a long list of prospective tenants looking for such an apartment” to justify refusal to a sublet under section 226-b of the Real Property Law.


The City contends there has been no waiver of immunity from suit because the relief sought by the Group is for <mask>, which is not a permissible award under section 271.153 of the Act. Specifically, the City argues that under the plain language of subsection (c) of section 271.153, the Legislature waived immunity from suit for breach of contract claims seeking specific performance only when the written contract concerned the sale or delivery of certain reclaimed waters. See TEX. LOC. GOV'T CODE ANN. § 271.153(c). Because the Memorandum did not concern the sale or delivery of reclaimed waters, there was no waiver of immunity. In response, the Group contends the City's reference to subsection (c) is inapplicable because subsection (c) was not in effect when the Memorandum was executed. Rather at that time, section 271.153 was silent on the recovery of specific performance, and thus, it did not prohibit the recovery of specific performance.


As noted above, the car was sold prior to the commencement of this litigation for a price of $185,000 more than the $40,000 contract price, and plaintiff requests that he be *123granted <mask> in the form of a constructive trust impressed upon the proceeds of sale, plus interest from the date of sale. As it developed, the defendant had not sold at the "top of the market,” which peaked in July of 1989, approximately two years after the original contract, when the car had a value of $335,000, which was $295,000 over the contract price. Thereafter, collectible automobile values slumped and the sale price of a comparable Astin-Martin vehicle by January of 1990 was $225,000 and, by the time of trial, was $80,000.


The supreme court, in its opinion under review, assumes that “ the contract makes no specific provision for hard-pan excavation.” This remark is correct, if by it there is only meant that hard-pan excavation is not specifically enumerated in the contract, in contradistinction to excavation generally ; and, in this view, it would be equally correct to say that the contract makes no specific provision for sand excavation, gravel excavation, or clay excavation. But if the supreme court means, as the conclusion drawn from the proposition seems to indicate, that hard-pan excavation was a description of work which Dubois by the contract was not bound to perform, then the proposition is entirely erroneous. The obligation assumed is in these words : “ The said Isaac Dubois doth covenant and agree to construct, in a. good, substantial, and workmanlike manner, all that part of the Delaware & Hudson canal which- is included in .section twelve of the line of the canal,” &e., and afterwards it was specified of what dimensions, form, .and finish this part of the canal should be constructed, and then follows the covenant on the part of the company for compensation, which was “ at the rate of nine cents per cubic yard for excavation, and forty cents per cubic yard for rock in ledge, or fragments measuring one cubic yard, and thirty cents per cubic yard for slope wall, and eleven centspercubicyardforembankment,” &c. Bythe terms of the contract,then,itisasplain as words can makeit,thatDuboisboundhimselftodig and construct the canal of the dimensions proposed, whatever should be the materials he had to excavate. Probably the parties did not contemplate, when they entered into the contract, that so large a part, or any part of the excavation, would prove to be hard pan; but the risk of what the excavation would prove, was, so far as the contract shows, assumed by the contractor, and'in strict law he was bound by it. It is said that a court of chancery would have relieved him from <mask>, on the ground of mistake ; perhaps it would, but this does not affect the question which is now before us. Certainly it would have been inequitable and oppressive for the company to insist on a strict fulfilment, if it were to be attended with a ruinous sacrifice. But as they had the legal right to do so, any modification which they saw fit to make of the terms, by which they would be more advantageous to the contractor, was gratuitous, and though obligatory inasmuch as the contract was executory, is still not to be extended, by implication or inference, beyond the express agreement or understanding of the company. The case admits that there was no express agreement for extra allowance for hard-pan excavation, but it was proved by the resident engineer, that in his monthly estimates hard-pan was set down as extra work, and allowed for. as such, by considering it as embankment, at eleven cents per yard, under the contract, and then adding fourteen cents a yard thereto, so as to make, in the whole, an allowance of twenty-five cents a yard. This extra allowance, it seems, the contractor was aware of while he was prosecuting the work, for it is proved that he at all times objected to its sufficiency. But if it was, as it seems evidently to have been, a gratuitous allowance, that is, an allowance which by strict law the company was not obliged to make, the objection to its insufficiency could have no effect; it certainly cannot have the effect of entitling the party to recover more in a court of law.


See Heinrich , 284 S.W.3d at 373-76 (otherwise-proper ultra vires claims implicate immunity to extent remedy has effect of retrospective monetary relief); IT-Davy , 74 S.W.3d at 855-56 (contrasting permissible ultra vires claims with "suits against state officials seeking to establish a contract's validity, to enforce performance under a contract, or to impose contractual liabilities," which "are suits against the State ... because [they] attempt to control state action by imposing liability on the State"); W.D. Haden Co. v. Dodgen , 158 Tex. 74, 308 S.W.2d 838, 840 (1958) ("There is a clear distinction between [permissible ultra vires claims] and suits brought against an officer to prevent exercise by the state through some officer of some act of sovereignty, or suits against an officer or agent of the state to enforce <mask> of a contract made for the state, or to enjoin the breach of such contract, or to recover damages for such breach, or to cancel or nullify a contract made for the benefit of the state.") (quoting Imperial Sugar Co. v. Cabell , 179 S.W. 83, 89 (Tex. Civ. App.-Galveston 1915, no writ) ); see also Texas Dep't of Transp. v. Sawyer Trust , 354 S.W.3d 384, 388 (Tex. 2011) (observing that "sovereign immunity will bar an otherwise proper [ultra vires ] claim that has the effect of establishing a right to relief against the State for which the Legislature has not waived sovereign immunity") (citing City of Hous. v. Williams , 216 S.W.3d 827, 828-29 (Tex. 2007) (per curiam)).


The defendants seek a dismissal of the first cause of action in this lawsuit. Said cause of action seeks an accounting and enforcement of the "equal gifts” portion of the agreement. Plaintiff is the daughter of the decedent and seeks enforcement as a <mask> of the agreement. The defendants assert that any possible enforcement of the agreement is barred by the applicable six-year Statute of Limitations. (See, CPLR 213.)


While the No-Fault Law provides a limited window of arbitration between no-fault insurers (see Insurance Law §§ 5105, 5106 [d]; Eagle Ins. Co. v ELRAC, Inc., 291 AD2d 272 [1st Dept 2002]), the statutory language does not pertain to a health insurer such as Aetna. Thus, Aetna cannot maintain a claim against defendant under the principle of subrogation (see Health Ins. Plan of Greater N.Y. v Allstate Ins. Co., 2007 NY Slip Op 33925[U] [Sup Ct, NY County 2007]). Nor may Aetna assert a breach of contract claim against Hanover, since it is not in privity of contract with Hanover, and there has been no showing that it was an intended <mask> of the contract. Concur — Tom, J.E, Acosta, Freedman and Kapnick, JJ. [Prior Case History: 2013 NY Slip Op 33221(U).]


There is no dispute as to the essential facts. On these facts, the plaintiff sues on four causes of action against the Chase Bank: (1) That Samuel Schupper, the plaintiff’s assignor, was a <mask> of a contract between the Chase Bank and the Rotterdam bank; (2) that the Chase Bank, upon receiving the order from the Rotterdam bank, was deemed to have made a deposit to the account of Samuel Schupper, the plaintiff’s assignor; (3) that the Chase Bank was negligent in the performance of its contract, in that the Chase Bank breached its duty owed to its depositor (Samuel Schupper) in paying out funds intended for him and in not depositing these funds to the account of the depositor, or, at least, in not inquiring of the Rotterdam bank as to the proper disposition of the funds before paying the money out; and (4) that the Rotterdam bank was, to the knowledge of the Chase Bank, acting as the agent of Wolf, that the Chase Bank owed a duty to ascertain the person to whom the funds should be paid, and that the Chase Bank negligently paid out the funds to Sidney Schupper. Although stated in several different theories, the plaintiff’s claim for relief is based upon the alleged legal impropriety, in the circumstances, of the Chase Bank’s payment to Sidney Schupper of an amount due to Samuel Schupper.


Lcmrence v. Fox does not apply to every case in which a person claims to be a “ <mask> ” of a contract between two others. It does apply to cases where there is a legal right founded on some obligation of the promisee to the beneficiary, to cases where the contract is made for the benefit of a near relation of a party to the contract and to cases where at the request of a party to the contract the promise runs directly to the beneficiary although he does not furnish the consideration. (Seaver v. Ransom, 224 N. Y. 233.) There must be a duty owing by the promisee to the party claiming to sue on the promise. (Seaver v. Ransom, supra, p. 240.) This requirement, however, 11 has been progressively relaxed until a mere shadow of the relationship suffices, if indeed it has not reached the vanishing point. (Corbin, Third Parties as Beneficiaries of Contractors’ Bonds, 38 Yale Law Journal, 1.)


Both Aetna and the Rental Corporation move for summary judgment in the third-party action. Aetna claims that the accident “did not result from ownership maintenance or use of a covered auto under the terms of the policy”. Although it hints that, because there is no mention of snowplowing or snowplows in the insurance policy, the vehicle was not a covered auto, Aetna focuses on the lack of connection between plaintiff’s injuries and the driving function of the truck to which the snowplow was attached. The Rental Corporation claims that if plaintiff’s injuries were caused by negligent snowplowing, then the accident resulted from the use of a motor vehicle within the meaning of the policy. The Rental Corporation also moves, in the alternative, for summary judgment on its cross claim against the Town for indemnification. The Town, in turn, supports the Rental Corporation’s motion for summary judgment against Aetna, asserting that as <mask> of the insurance contract, Aetna owes the Town the same duty to defend and indemnify as it owes to the Rental Corporation. The Town opposes the motion for summary judgment against it on the ground that judgment *246on the third-party claim against Aetna renders the cross claim moot, and on the ground that, if Aetna is entitled to summary judgment, then the Rental Corporation is nonetheless liable to the Town pursuant to the contract between the defendants. Plaintiff does not appear on the motion.


Moreover, neither Harris nor RN Solution in fact applies so broad a rule as some of their language, taken in isolation, arguably suggests. In Harris , the doctor at issue was not only an employee of the corporation that entered into the arbitration agreement, but also a <mask> of that agreement. ( Harris, supra , 188 Cal.App.3d at p. 479, 233 Cal.Rptr. 186.) Similarly, in RN Solution , the party opposing enforcement of the arbitration agreement in fact signed it in her capacity as the corporation's president and CEO, and had personally "benefited financially and professionally" from it, so she was not only an "agent-employee" of the corporation, but also a third-party beneficiary. ( RN Solution, supra , 165 Cal.App.4th at p. 1520, 81 Cal.Rptr.3d 892.)


In New York Jurisprudence (10 NY Jur, Contracts, § 249, p 176, supra; citing, inter alia, New York Pneumatic Co. v Cox Constr. Co., 201 App Div 33, affd 235 NY 567; Little v Banks, 85 NY 258, 263), the rule as to third-party beneficiaries of a public contract is stated thusly: "The rule permitting a <mask> to sue upon a contract has been applied to *654certain public contracts. Thus, contractors with the state or a municipality who assume, for a consideration received from the sovereign power, by covenant expressed or implied, to do certain things, are liable in case of neglect to perform such covenant, to a private action in a suit of a private party injured by such neglect, although the state or municipality might not be liable to such party, and such contract inures to the benefit of the individual who is interested in its performance. This rule has been based upon the theory that the contractor, having received a consideration from the sovereign power for performing a public duty, is liable for neglect to discharge that duty to anyone who thereby sustains special damages.”


Citation of authority is not required to sustain the court’s power to condemn an ordinance as a violation of higher law, where the validity of the ordinance is properly before it. The real question is whether the very passage of this ordinance subjects it to review under article 78 of the Civil Practice Law and Rules. It is true that the action of legislative bodies upon applications for special use exceptions pursuant to zoning ordinances are subject to this type of review as in Matter of Rhodes v. Waters (15 Misc 2d 119), despite the untrammeled discretion of the legislative body (Matter of Lemir Realty Corp. v. Larkin, 10 A D 2d 1005, affd. 11 N Y 2d 20). However, special use exception matters fall into an “ administrative ” category similar to applications for zoning variances (Matter of Copp v. Mead, 194 N. Y. S. 2d 144, 146). Nevertheless, the contrary rule applies to legislative action on applications for a change of zone. Those matters being amendments are “legislative.” They are not susceptible to direct review under article 78 (Matter of Buckley v. Fasbender, 275 App. Div. 853; Matter of Pelham Jewish Center v. Board of Trustees, 9 Misc 2d 564). I deem the instant ordinance to be governed by the latter rule of procedure. The appropriate remedy might be by plenary action for judgment declaring the ordinance unconstitutional or in violation of any rights petitioner might have as a <mask> of the lease; or perhaps some or all of the *134issues may be raised by appeal from a determination enforcing it (see, e.g., People v. Gilbert, 307 N. Y. 773; People v. Kraushaar, 195 Misc. 487; cf. People v. Greeman, 137 N. Y. S. 2d 388). Therefore, I rule as has Mr. Justice Hoyt in Matter of Lee v. Board of Trustees of Vil. of Briarcliff Manor (N. Y. L. J., July 9, 1964, p. 10, col. 5), that this proceeding does not lie.


The principal issue raised on this motion pertains to the employee’s right to initiate the instant application, i.e., his status as a “ party to the controversy which was arbitrated,” within the purview of the statute (Civ. Prac. Act, § 1462). By virtue of the fact that it is his job tenure which is at stake and which was the subject of the controversy, the employee claims <mask> status under the bargaining contract. The issue pertaining to the employee’s right to initiate this proceeding must be determined by the court before reaching the merits of the application itself.


The defendant urges that, since the Government has a one-year right of redemption, her tenancy should not be interfered with during that period, as the benefit of the lease would be lost to the redemptor. Notwithstanding, that this is of no concern to the defendant, that argument assumes that the lease is something of value to the property when in all likelihood the terms of the tenancy were a contributory factor to the circumstances that resulted in foreclosure. Be that as it may. there is no New York authority, statutory or otherwise, that a lease made subsequent to a recorded mortgage (which is the situation here) should remain in effect for the duration of a redemption period fixed by Federal statute for the Government’s protection. The Federal law which merely gives the Government the right of redemption affects only the title of the mortgaged premises for that period after a foreclosure sale. It is so recognized by the courts of this State. (Co-operative Loan and Sav. Soc. v. McDermott. 14 A D 2d 590: Eawitable Life Assur. Soc. v. Hochstein, 45 Misc 2d 450.) For the defendant to have any enforceable right as a <mask>, as she claims, it must be shown that the plaintiff made a promise upon a valid consideration to a third party for the defendant’s benefit, although she was not privy to the consideration (Lawrence v. Fox, 20 N. Y. 268). There is a complete absence of such a showing.


In Milliken & Co. v Consolidated Edison Co. (84 NY2d 469 [1994]), the Court of Appeals found that commercial tenants had no right to make claims for physical damage or associated economic loss caused by a power interruption against Con Ed as a <mask> where they were submetered for electrical use and the landlord was the utility’s customer, absent an express undertaking by the utility. In Tri-Tone Litho v Consolidated Edison Co. (230 AD2d 625), commercial tenants who were not in a contractual relationship with Con Ed claimed that Con Ed failed to upgrade plaintiff’s service for several months, causing alleged economic damages. The Court found that Con Edison owed such tenants no duty. Clearly, a utility should not be liable to commercial tenants it is unaware of, conducting types of business which it is unaware of, for economic damages which could not be foreseen.


On November 15, 2016, appellants filed a motion to compel arbitration and separately filed brief in support asserting that because Glenda Sue was a <mask> of a valid, enforceable arbitration agreement between appellants and Tonja Belt, Jesse Alan should be ordered to submit to arbitration in accordance with that agreement. Jesse Alan responded on November 30, 2016, denying that the arbitration agreement was valid or binding against Glenda Sue as Belt was not "the Resident, or the person duly authorized by the Resident" to execute the agreement and accept its terms, a requirement of the arbitration agreement. Appellants replied to Jesse Alan's response on December 13, 2016.


Even if Cohen acted as an agent for his clients, he did not have standing to bring a "representative petition" to compel arbitration on their behalf. Cohen was not a party to the subscription agreements, nor does he identify any substantial, personal interest in the agreements. He does not claim to be a third party beneficiary, his clients did not assign him the notes or any of their rights under the subscription agreements, and he identifies no statute *357giving him standing to enforce the subscription agreements on behalf of his clients. He was perhaps an attorney-in-fact or an investment manager, neither of which gave him standing to enforce the agreements. (See JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1240, fn. 20, 123 Cal.Rptr.3d 429 ["when a nonsignatory of a contract is attempting to seek relief for breach of the contract itself, that nonsignatory must be doing so by means of either a <mask> argument, or a legal theory which entitles that nonsignatory to 'stand in the shoes' of a party to the agreement-either by virtue of a preexisting relationship, or as an assignee or successor in interest"]; Northstar Financial Advisors, Inc. v. Schwab Investments (N.D.Cal. 2009) 609 F.Supp.2d 938, 942 [investment manager could not "bring claims *858on behalf of its clients simply by virtue of its status as an investment advisor"], revd. on another ground (9th Cir. 2010) 615 F.3d 1106.)


The escrow agent must take whatever steps may be necessary to fulfill his or her duties properly. Here, defendants’ duty was to strictly execute the terms of the escrow agreement (Farago v Burke, 262 NY 229, supra; Schuman v Conforti, 41 AD2d 661 [2d Dept 1973]), and failure to fulfill the duty entitled the <mask> of the subject matter of the escrow (herein the plaintiff) to bring an action against the escrow agent without joining the promisor (herein TFC) (see, United States v Jacobs, 304 F Supp 613 [SD NY 1969]).


It is clear that if the area in which the accident occurred were a State roadway and the lighting in question was owned and maintained by LILCO, that there would be no liability on the part of the public utility. (See, Kraye v Long Is. Light. Co., 42 AD2d 972; Shubitz v Consolidated Edison Co., 59 Misc 2d 732; Nicholson v City of New York, 271 App Div 899, affd 297 NY 548.) It would appear that the defendant town, in the case at bar, is in a position similar to the public utility in terms of Hempstead Turnpike, inasmuch as that road is not a town road but a State road for which the town has no responsibility to maintain. If any one owes the public a duty to make them reasonably safe to pass over, it is the State. The town is merely in the same posture as the public utility vis-á-vis the road known as Hempstead Turnpike, and it is merely furnishing a benefit which it has the right to discontinue at its discretion. There is no more an indication of an intent to furnish <mask> rights herein than there are in cases where a municipality contracts with an outside party to provide services which will benefit its citizens or the public, e.g., water supply (Moch Co. v Rensselaer Water Co., 247 NY *545160), and illumination of public roads. (Kraye v Long Is. Light. Co., supra; Kornblut v Chevron Oil Co., 62 AD2d 831, 843 [concurring opn].)


In 1990, with construction approximately 85% complete, plaintiff and the City became involved in a dispute over certain low-income housing requirements and, as a result, the City failed to tender payment of approximately $35,000 of the CDBG funds that were allegedly due pursuant to its loan agreement with plaintiff. Work on the project stopped and plaintiff commenced this action against the City for breach of contract. The City in turn filed a third-party complaint against Whitman and Beautz, seeking indemnification, contribution and recovery as a <mask> of their contracts with plaintiff, and charging each with negligence. The third-party action was severed from the main claim, and the latter proceeded to trial, after which a jury found that the City had unjustifiably breached its loan agreement with plaintiff.


As to the first part of the second defense, namely, that Dave Fleischer has no standing to sue in his individual capacity, defendants claim that he was not a party to the agreement and cannot assert any claim on behalf of himself individually under the agreement, maintaining that the Fleischers chose to produce cartoons under the protection of a corporate organization and that Paramount acceded to dealing with them on that basis and that the relationship between Fleischer Studios, Inc., and the Fleischers was that of employer-employee and that they cannot now claim that they as individuals were party to the agreement between their corporation and Paramount. Moreover, defendants claim that there is no claim made herein by plaintiff that he is a <mask> of the contract between Paramount and Fleischer Studios, Inc., or that the contract was intended for his direct benefit. Defendants finally contend that if Dave qnd Max Fleischer were parties to the agreement between Paramount and Fleischer Studios, Inc., there would be no necessity for the wholly separate contract also dated May 24, 1941 between Paramount and Max and Dave Fleischer.


In the ninth cause of action which is based on contract to recover for the infant’s conscious pain and suffering prior to his death, it is not clear whether plaintiff is suing on the theory that the infant was a <mask> of a contract between the defendant and his parents or whether the newly born infant was a direct party to the contract. The complaint alleges, among other things, that the infant “ through the agency of those acting on his behalf, duly performed all of the conditions precedent to be performed on his part in relation of the agreements with the defendant ”.


However, the tenant must pay the common charges as a <mask> for services rendered the tenant by the condominium. In Seaport S. Condominium (supra, at 875), the court held that "given the established fact that [the tenant] has not paid either basic common charges or the additional charges for fuel, late fees, interest [or] attorneys’ fees, an order directing use and occupancy should be entered.” The defendant clearly benefits from the services provided to her by the condominium and must bear the costs involved in paying for those services. A reasonable use and occupancy is at least $245.67 per month, which is the common charge for this unit. *594Therefore this court is ordering that the defendant pay use and occupancy from October 17, 1994 (the date the summons and complaint were filed) through April 17, 1996, which is 18 months at $245.67 per month for a total of $4,422.06.


*681No agreement directly between the plaintiff and the newspapers is pleaded or claimed to exist. Neither does the complaint plead a contract between the defendants for the plaintiff’s benefit, and therefore the doctrine which permits a recovery by a <mask> can have no application. It follows therefore that the complaint is insufficient as against the moving defendants and is dismissed with leave to replead in accordance with this memorandum, if plaintiff be so advised.


There is no question that the property owners are the dominant obligees, and that the plaintiff, as a <mask>, may have recourse to the bonds only to the extent that they remain untouched by the needs of the former. However, this does not defeat the right of plaintiff to bring the action, but may only be availed of by way of an affirmative defense.


If it is not altogether clear whether it is on the theory of implied agency or <mask> doctrine, or because it is a “ wrongful act, neglect or default ” (Greco v. Kresge Co., 277 N. Y. 26), it is manifest, nevertheless, that in these cases of the breach of an implied warranty of fitness for use in connection with the sale of foodstuffs, the traditional concept of privity no longer constrains the courts to an absurd as well as unconscionable result.


The court further finds that even if plaintiff was a <mask> of the contract between Halls Security and the City of New York, it cannot be concluded that Halls Security could have reasonably expected, anticipated or prevented the attack upon Natale Macaluso. (See, Moberg v New York Yankees, 218 AD2d 731; see also, Harper v Wells Fargo Guard & Investigative Servs., 226 AD2d 345.) To the extent that plaintiffs assert that Halls Security failed to provide campus patrols as required by their contract, this claim, at the most, constitutes a breach of contract and does not raise any triable issues of fact as regards the claim of negligence.


In expressing the grounds for this decision, it does not seem necessary that the covenant be here set out in full. It is true that the covenant is inartistically drawn and, as a whole, is somewhat ambiguous, but it clearly does prohibit the erection upon lands of defendants of an apartment house and the occupancy o'f a dwelling on such lands by more than two families. I do note that the covenant is stated to be by the party of the second part (the grantee from Iselin) “ and his heirs and assigns * * * to and with the said Adrian Iselin, Jr., his heirs, executors and administrators ” and that there is nothing in the wording thereof indicative of the intent that it is imposed *304for the benefit of the assigns or grantees of said Iselin. Therefore, the plaintiff may not enforce the covenant on. the theory that she is a <mask> of the contract. (See, Hungerford v. Ocean Gardens, 283 App. Div. 797, affd. 308 N. Y. 765.)


“Parties asserting <mask> rights under a contract must establish ‘(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost.’ ” (Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786 [2006], quoting Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983].) “It is the generally accepted rule that the intent to confer a direct benefit on a third party must clearly appear in order to enable such a party, not named in the contract, to recover there*180under.” (Snyder Plumbing & Heating Corp. v Purcell, 9 AD2d 505, 508 [1st Dept 1960].) There must be a “clear intention to confer the benefit of the promised performance.” (PT. Bank Mizuho Indonesia v PT. Indah Kiat Pulp & Paper Corp., 25 AD3d 470, 471 [1st Dept 2006].) “Absent such intent, the third party is merely an incidental beneficiary with no right to enforce the contract.” (Strauss v Belle Realty Co., 98 AD2d 424, 426 [2d Dept 1983]; see also Beveridge v New York El. R.R. Co., 112 NY 1, 26 [1889].)


Claiming that the parties had no right to alter the stipulation insofar as his fee was concerned and that the court had no power, authority or jurisdiction to act as it did in ” so ordering ” the vacatur of the stipulation without his consent, plaintiff has brought this action wherein he seeks to recover as a <mask> from the defendant Severino the sum of $2,000 as agreed.


*780There is no question but that there was a contract of life insurance between deceased, Frank Martin, and defendant. The plaintiff, Susan Martin, is a <mask> of such policy and may recover only pursuant to its terms. Defenses to the promisor defendant life insurance company, on the contract which induced its promise, are available to the same extent that it would be if it were sued by the initial promisee (i.e., Frank Martin).


Section 2.18 of the agreement provides, inter alia: “Western Union agrees that for a period of 25 years after the Closing Date it will not compete, either directly or indirectly, by wire, radio or other means of communication, now or hereafter existing, with the Cable System in international telegraph operations [as defined from time to time in the Communications Act].” Plaintiff, alleging standing as a <mask> of the contract, claims a breach of this covenant against competition. The time frame is based upon the allegation that the closing date of the agreement was September 30,1963, and that therefore, the covenant against competition is effective through September 30, 1988.


The biggest roadblock to the actual use in New York of the <mask> rule (by its name) in breach of warranty cases, has been due to the claim that the Gimenez case (264 N. Y. 390 [1934], supra) is authority for the proposition that the third-party beneficiary doctrine is not applicable in breach of warranty cases. And so the courts have continually refused to employ the rule as a means of circumventing the strict privity doctrine of the Chysky case (235 N. Y. 468 [1923], supra) because the court said (Gimenez v. Great Atlantic & Pacific Tea Co., supra, p. 395): “ the courts have never gone so far as to recognize warranties for the benefit of third persons.”


The theory upon which the plaintiff son bases his cause of action is that he is a <mask> of the separation agreement and is entitled to recover the amount of expenses allegedly incurred by him by reason of defendant’s alleged breach of the agreement in failing'to pay his college expenses. The right of a child to bring an action to enforce a provision of a separation agreement between his parents has been upheld by the Court of Appeals in Forman v. Forman (17 N Y 2d 274). The argument that, since the separation agreement did not provide for payment to the son himself of the cost of his college education, he cannot maintain the instant action is not sufficient to warrant dismissal of his cause of action. Clearly, the subject provision of the agreement was designed for his benefit and if, in reliance thereon and in anticipation of reimbursement, he expended sums of money for his college education, his cause of action should not be dismissed for insufficiency in advance of a trial.


Finally, this court fails to concur with movant’s interpretation of the license agreement that members of the general public "cannot be deemed to be intended beneficiaries of that portion of the contract relating to operation, repair or maintenance,” because American Golf has no possessory interest, but that members of the general public can sue if excessive fees are charged because it is clear that members of the general public were intended to be specific beneficiaries of the contract concerning fees. (See, mem of law.) If the rationale is that plaintiff cannot commence an action against American Golf for failure to maintain the premises in a safe condition because it is not in privity of contract, then it follows that plaintiff cannot commence an action against American Golf for a refund, but must seek the refund from the City instead. In this regard, American Golfs reliance on Kornblut v Chevron Oil Co. (62 AD2d 831 [2d Dept 1978]) as supporting American Golf’s rationale is misplaced. In Kornblut (at 834): "[t]he plaintiff chose to seek recovery on the theory that the decedent was a <mask> of the contract between Chevron and the Thruway Authority, and in making that choice risked the consequences which follow the theory of contractual obligation [citation omitted]. We must treat the Thruway Authority as a creation of the State, carrying out a governmental function (Public Authorities Law, § 353) including, among other things, the construction of 'suitable facilities for gas stations’, which 'shall be publicly offered for leasing for operation * * * under rules and regulations to be established by the authority’ (Public Authorities Law, § 354, subd 10), and the operation and maintenance of the Thruway, either by its own equipment or by agreement with independent contractors, or both (Public Authorities Law, § 360). Hence, the contract between Chevron and the Thruway Authority and the contract between [defendants] must be considered in the light of the law controlling the relationship between the government and its contractor and a third party claiming injury arising out of a breach of the contract.” In contrast, plaintiff herein is not suing on a contractual theory; plaintiff claims that defendants were negligent in the maintenance of the facilities.


The committee, as plaintiff, instituted an action in Supreme Court, New York-County, against the then preliminary executors of the estate (the will has since been admitted to probate). This action, transferred here by order of the Supreme Court, seeks damages for breach of contract in the sum of $5,000,000 in behalf of the incompetent, as a <mask> under a separation agreement entered into between her parents, both now deceased. Incompetent’s father, this decedent, agreed that he would make ‘ ‘ adequate provision in his Will for the maintenance and support of said Marie Meister and for payment of all expenses incurred or to be incurred for her medical care and treatment ”. The separation agreement during the lifetime of the father called for the payment of $2,000 per annum. In his will he provided that the income of a parcel of real property in Hempstead, Long Island, be paid by the trustees in their dis*461cretion for her care, maintenance and support. The income from this trust for her benefit during the year 1967 was $5,284.14, more than two and one-half times the annual provision for her support agreed upon between the parties during the decedent’s lifetime. A principal issue in this case was whether the provision made by the will was within the intent of the parties. Sharp questions of law and fact were faced by the parties during the time the settlement was in process of negotiation. At the time the settlement was reached the parties were faced with (questions of construction relating to the separation agreement and the will and questions as to the intent of the parties in respect of the obligations of the husband. Under the settlement the incompetent, now 42 years of age, will receive the income of a trust amounting to $300,000 with provision for invasion to the extent of $10,000 a year, totaling $100,000 of that fund. This income amounts to more than five times that which she would take under the will. This estimate does not take into account what will be available out of the $100,000 by way of invasion over the next 10 years. The $300,000 will be funded undiminished by any compensation which is to be allowed to the attorney for the committee. He is to be paid from the general estate, then approximately $1,300,000.


As a <mask> of the 1947 agreement, Linda is a contract creditor of the estate (Matter of Granwell, 20 NY2d 91; Simonds v Simonds, 45 NY2d 233; McClare v Massachusetts Bonding & Ins. Co., 266 NY 371; Seaver v Ransom, 224 NY 233; Matter of Brown, 41 AD2d 275, revd on other grounds 33 NY2d 211; Matter of Orvis, 35 AD2d 538; Matter of Chilson, 28 AD2d 766).


It is the petitioner’s position that the respondents are merely incidental beneficiaries to the regulatory agreement. They allege that the parties to the regulatory agreement never formulated an intent to directly benefit these tenants, and that, at most, the intent was that the benefits should redound to the public at large, or to a class of indefinite expression — which is insufficient to support a finding of <mask> status. (See Ultramares Corp. v Touche, 255 NY 170.) On this basis, the petitioner contends that the respondents are “merely * * * incidental * * * [beneficiaries] with no right to enforce the particular contracts” (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 655).


To begin, the McClures are not third-party beneficiaries because the complaint and attached exhibits do not show a clear intent on behalf of the DeLoreys to benefit DiggiCs subdividees. See Wood v. Germann, 130 Nev. 553, 557, 331 P.3d 859, 861 (2014) (recognizing that a nonparty to a contract only has standing to enforce the contract when the nonparty is an intended third-party beneficiary). "To assert standing as a <mask> to a contract, a plaintiff must show (1) a clear intent to benefit the third party. and (2) the third party's foreseeable reliance on the agreement." Boesiger v. Desert Appraisals, L.L.C., 135 Nev. 192, 197. 444 P.3d 436. 441 (2019). The core of the McClures argument is that the Cohn map showed that the properties were subdivided before the DeLorey-Diggle Deed. and thus, the DeLoreys created a general scheme that included the Beachfront Building Restriction when they included that covenant in the DeLorey-Diggle Deed. However, the exhibits attached by the McClures to their FAC belie their argument. While the McClures are correct that the Cohn map subdivided a large tract of land near Lake Tahoe, the DeLorey- Diggle Deed shows that the DeLoreys conveyed only a portion of Lot 3 from the Cohn map to Diggle. Further, the other operative documents, such as the Diggle-Bejarano Deed and the Snug Harbor CC&Rs, all recognize that Diggle subdivided the land. For example, the docurnents renewing and modifying the original CC&Rs explicitly recognized that the signer was "the owner of one of the seven parcels of land subdivided by Paul Diggle from a parcel conveyed to hirn by deed . . . on June 13, 1955" (emphasis added). Diggle did not include a Beachfront Building Restriction in any of the subdividing documents even though the DeLorey-Diggle Deed included such a restriction. Moreover, the DeLorey-Diggle Deed did not require


Conversion France SAS, Corp v Outokumpu Stainless USA, LLC, 590 US ___, ___; 140 S Ct 1637, 1643-1644; 207 L Ed 2d 1 (2020) (recognizing “that arbitration agreements may be enforced by nonsignatories through assumption, piercing the corporate veil, alter ego, incorporation by reference, <mask> theories, waiver and estoppel”) (cleaned up). Our Court of Appeals has similarly observed that whether nonsignatories can arbitrate depends on general common-law principles, such as agency law. See American Federation of State, Co & Muni Employees, Council 25 v Wayne Co, 292 Mich App 68, 81; 811 NW2d 4 (2011). Plaintiffs develop other arguments against enforcement of the arbitration agreement by the Firm or Morse, including that the agreement is unconscionable and illusory and that defendants forfeited their right to enforce arbitration. These arguments do not directly involve the interpretation of the agreement and were not addressed by the Court of Appeals below. My resolution of the interpretive issues before the Court here would leave plaintiffs free to raise these other arguments on remand.


The “conditional” promise within the contract of insurance with Frank Martin was that his beneficiary, plaintiff, would recover $20,000 on his death only if such were “accidental”. If such death were not accidental, e.g., suicide, only the nominal recovery of $10,000 was to be paid to the <mask>, plaintiff, Susan Martin, in this action. If indeed the deceased violated the “condition” requiring “accidental” death for double recovery, the beneficiary cannot recover such amount for the duty of the defendant to pay the $20,000 amount was conditioned upon deceased’s performance in the manner of his death. It is fundamental that the beneficiary’s rights flow from the contract itself (see, generally, 2 Appleman, Insurance Law & Practice, § 771); her “rights [being] no greater than those of the assured, and the policy in [her] hands is subject to attack exactly as it would have been had the assured lived.” (New York Life Ins. Co. v Faillace, 138 Misc 182, 183, affd 231 App Div 826.)


The court finds respondent, Joe Hawes, to be a <mask> of the bailout agreement between MHA and DSS. To base eviction proceedings on occurrences prior to the date MHA accepted the rent check, January 26, 2004, raises questions as to whether the MHA-DSS bailout agreement was based on *257incomplete, if not misleading, information. As the court based its decision on petitioner’s lack of compliance with its own published procedures, the court need not address that question further at this point. Petition denied for the reason given herein.


They also must realize, we are sure, that there is no privity between the subcontractor and the State, nor that the subcontractor has a right to sue as a <mask> of the contract. The State is solvent. It consents to be sued by the one with whom it has entered into the obligation of the contract, and does always pay upon final determination of its obligation. It owes nothing directly to the subcontractor, who, nonetheless, is permitted to testify and who, no doubt, is the most competent witness concerning the portion of the contractor’s claim involving his own work. (N. Y. Const., art. VI, § 9 ; Court of Claims Act, § 9.)


The first cause of action in the amended complaint sought to recover damages, in effect, for breach of contract. It alleged that the plaintiff was a <mask> of the Bradhurst contract, and that under the Bradhurst contract, the work was to be completed by October 2013, but it took substantially longer due to inexcusable delays by the County and Bradhurst. The amended complaint alleged that despite numerous requests by the plaintiff, the County failed to take steps to speed the construction along, resulting in damages to the plaintiff.


The corporation was the direct, rather than the incidental, beneficiary of the agreement. Any benefit to the stockholders would only be incidental, flowing, as it must, through the corporation. It is not necessary in this case to infer who the beneficiary of the agreement was. It ‘ ‘ was the intention of the parties to the agreement so arrived at, that the corporations should benefit therefrom by reason of the said limitation on the salaries of the officers ”. The agreement to limit the compensation of the officers was made “ to preserve the corporation’s assets”. (Further amended complaint, pars. 12, 14.) Thus, it was expressly intended by the parties that the corporations would be the beneficiaries of the agreement. Whether the plaintiffs will be able to prove these allegations on the trial is a matter that is not now before this court. The complaint alleges sufficient facts to show that there was an agreement to limit salaries and that the corporation was the <mask> of that agreement. It also alleges facts sufficient to show that the individual defendants have accepted salaries in excess of those permitted by the agreement. This branch of the defendants’ motion, accordingly, is denied. The defendants may serve an answer to the complaint within 20 days of the service of a copy of the order to be entered hereon.


The General Business Law of this State seeks to define the term credit card as follows: " 'Credit card’ means and includes any credit card, credit plate, charge plate, courtesy card, or other identification card or device issued by a person to another person which may be used to obtain a cash advance or a loan or credit or to purchase or lease property or services on the credit of the issuer or of the holder” (General Business Law § 511 [1]). The statute also defines terms of "person”, "issuer”, "holder”, "unauthorized use”, "seller”, "lender”, "improper use”, and "accepted credit card”. However, the statute fails completely in disclosing the nature of the use of a credit card from a legal standpoint. The broad spectrum of seeking to define the use of a credit card from such a viewpoint is summarized in 50 Am Jur 2d, Letters of Credit, and Credit Cards, § 38, at 428-429, as follows: "From a legal standpoint, credit cards or their predecessors have been variously defined as, or held to be, negotiable instruments, mere identification cards, broad contracts of guaranty, assignments, <mask> contracts, or special, clean, revocable letters of credit.” (Case reference is set forth for each definition noted.)


To protect and preserve laborers’ right to receive a prevailing wage, our courts have expansively viewed the remedies afforded laborers under Labor Law § 220. Thus, for example, in Wright v Wright Stucco, the Court of Appeals held that laborers have, in addition to the statutory remedy provided in Labor Law § 220, a continued common-law right to sue their employer as a <mask> under a public construction contract. (Wright v Wright Stucco, 50 NY2d 837, 839 [1980]; see *802also Nawrocki v Proto Constr. & Dev. Corp., 82 AD3d 534, 536 [1st Dept 2011] [same].)


“DASNY is in breach of its contractual obligations to the County as a <mask> of the [UDC]/DASNY Agreement by, among other things, failing to ensure that a ‘world class’Aquatics Center was adequately and properly designed, and was built for the County in a good and workmanlike manner, free of design or construction defects, errors or omissions” (exhibit E to motion ¶¶ 100, 121). *254The County cross-moves for partial summary judgment dismissing the first, second and third affirmative defenses asserted in the UDC/DASNY answer. Those affirmative defenses are: failure to state a cause of action, failure to commence this action within the applicable statute of limitations, and that the UDC/County agreement is void and unenforceable for lack of consideration (exhibit F to motion ¶¶ 170-172).


“A party asserting rights as a <mask> must establish ‘(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost.’ ” (State of Cal. Pub. Employees’ Retirement Sys. v Shearman & Sterling, 95 NY2d 427, 434-435 [2000], quoting Burns, 59 NY2d at 336.) New York has adopted the standard set forth in section 302 of the Restatement (Second) of Contracts to determine if a party was an intended beneficiary:


In Salesky v Hat Corp. of Amer. (20 AD2d 114), a putative <mask> sought to enforce a contract which, unamended, named her as the beneficiary. The signatories duly modified it naming another party the beneficiary. The court held that the contract, by its terms, allowed the signatories to modify or terminate it. Since the signatories reserved the right to amend or modify the contract, the court held that the putative beneficiary had no rights under the contract.


The first element-injury-focuses in on whether the plaintiff "plead[ed] facts demonstrating that he, himself (rather than a third party or the public at large), suffered the injury." Heckman , 369 S.W.3d at 155. "A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority[.]" [Emphasis and internal citation omitted]. Austin Nursing Ctr., Inc. v. Lovato , 171 S.W.3d 845, 848-49 (Tex. 2005). "In order to establish standing to maintain a breach of contract action, a plaintiff must show either <mask> status or privity." OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P. , 234 S.W.3d 726, 738 (Tex.App.-Dallas 2007, pet. denied). "For purposes of standing, privity is established by proving that the defendant was a party to an enforceable contract with either the plaintiff or a party who assigned its cause of action to the plaintiff." [Internal quotations and alterations omitted]. Id. ; see also Republic Petroleum, L.L.C. v. Dynamic Offshore Res. NS, L.L.C. , 474 S.W.3d 424, 430 (Tex.App.-Houston [1st Dist.] 2015, pet. denied) ("A plaintiff establishes standing to maintain a breach-of-contract action by demonstrating that it has an enforceable interest as a party to the contract, as an assignee of a party, or as a third party beneficiary.").


Judge Cardozo’s decision in Glanser v. Shepard (233 N. Y. 236 [1922]) stands as a living testament to the appropriateness and applicability of the <mask> rule in breach of warranty actions, particularly since public health is involved. It is absolute proof of the advisability of discarding the privity doctrine in the interest of justice as well as reason. Let us apply the decision to the facts in this case:


In May 2017, Mabel filed a lawsuit against Hickory Heights, claiming that during her approximately three months' stay while she recovered from a broken hip, she was sexually assaulted in the facility. Mabel's complaint asserted negligence, medical negligence, and breach-of-contract theories against Hickory Heights. Hickory Heights responded to the lawsuit by filing a motion to compel arbitration based on the documents signed by Ethel. Hickory Heights argued (1) that Mabel's causes of action fell within the ambit of the arbitration provision and (2) that although Mabel did not sign the documents, Ethel did so and bound her mother as the <mask> of those contracts. Mabel opposed the motion, arguing that Ethel did not have Mabel's power of attorney; that Ethel signed only in an attempt to be Mabel's representative but lacked authority to bind her mother; and that Ethel did not sign in her individual capacity so that the third-party-beneficiary doctrine did not apply. The trial court summarily denied the motion in a one-page order without explaining its reasoning.2 Hickory Heights appeals, asserting that the trial court erred because the third-party-beneficiary doctrine mandates that Mabel's causes of action be resolved in arbitration.


The appellants' first argument before this court is that the claims asserted on Glenda Sue's behalf are governed by the arbitration agreement because she is an intended <mask> of the arbitration agreement signed by Belt in her individual capacity. In support of this argument, appellants assert that (1) a valid contract existed between Pine Hills and Belt, in her individual capacity;7 and (2) the arbitration agreement between Pine Hills and Belt was made for the benefit of Glenda Sue. The circuit court specifically found that Belt "lacked legal authority to act in a representative capacity to bind *496Glenda Talley to the arbitration agreement"; and thereby, found that no valid agreement existed between Talley and appellants. We first consider this finding of the circuit court, although we note that appellants do not appear to specifically challenge this finding.


Although it may be ultimately liable to the limit of its coverage on the underlying liability policy, the insurance company is not a judgment debtor primarily liable to plaintiff, who is a <mask> of the liability contract between defendant insured and the carrier. The undertaking is an unconditional promise by the insurer to pay the full amount of the judgment, or such proportion as is ultimately affirmed. By undertaking this direct, unqualified obligation, it “relinquishes any defenses to liability it may have had under its policy and relies solely upon the errors assigned upon the appeal.” (7 Weinstein-Korn-Miller, NY Civ Prac, par 5519.11, quoting Smith v 167th St. & Walton Ave. Corp., 177 Misc 507, 509.) By so doing it clearly provides greater protection to both the plaintiff and the defendant as well; it thus satisfies the manifest intent of CPLR 5519 which is to assure the continued integrity of a judgment through the appellate process, while enabling the appellant to test error without prematurely, and perhaps unnecessarily, forfeiting his property. This view is further supported by the specific wording of the statute which neither mandates that a different carrier provide the appellate undertaking, nor requires the posting of a bond.


Moreover, this motion stands on its own as an independent application for relief. In the original motion plaintiff invoked Real Property Law § 291-f to prevent a modification of the lease. The instant motion seeks to enforce the lease pursuant to its terms on the ground that plaintiff is a <mask> of the lease clause. Thus, even if the motion is considered to be an independent one, it does not violate the rule in Foley v Roche (supra, at 568): "Nor should the remedy be available where a party has proceeded on one legal theory on the assumption that what has been submitted is sufficient, and thereafter sought to move again on a different legal argument merely because he was unsuccessful upon the original application.” The prior motion did not seek to enforce the lease as written. Since this motion is different from the prior one, and is not barred by the original decision, it must be dealt with on the merits.


When an assignment occurs after a PSA's closing date, most courts "hold that the assignment is voidable at the option of the parties to the PSA." Wood v. Germann , 331 P.3d 859, 861 (Nev. 2014). "These courts have recognized that a PSA is a contract between the originating lender and the subsequent purchaser/trustee and that, under traditional principles of contract law, a contracting party is capable of ratifying conduct that is done in violation of the contract." Id. "Thus, although a post-closing-date loan assignment violates *503the terms of the PSA, these courts conclude that such an assignment is not void, but is merely voidable, because the trust has the option of accepting the loan assignment despite its untimeliness." Id. "Applying these traditional principles of contract law, these courts further hold that the homeowner, who is neither a party to the PSA nor an intended <mask>, lacks standing to challenge the validity of the loan assignment." Id.


Hazen and Sawyer argues that it is entitled to indemnification from Koehler based on Koehler’s subcontract with Pegno/ *888Tully. They argue that despite the fact that they are not named beneficiaries in the subcontract, Koehler assumed Pegno/Tully’s obligations under its contract with the City, including Pegno/ Tully’s obligation to indemnify other prime contractors such as Hazen and Sawyer. Hazen and Sawyer also argue that they are a <mask> of the subcontract between Pegno/ Tully and Koehler and thus can seek indemnification directly from Koehler.


The respondent’s argument in this regard is that he is a <mask> under the co-operative plan contracted for by the petitioners. In the plan the petitioners were advised that they took their interest in the apartment subject to the rights of the tenant then occupying the apartment. Further, the petitioners were told that the apartment may have been subject to the Bent Stabilization Law. This court has not been persuaded that the agreement by which the petitioners entered into a contract with the owner of the fee, whereby the petitioners would have to pay a total purchase price of $34,160 for the shares *678representing apartment 16C, was a contract for the benefit of the respondent. New York courts have been liberalizing the theory of third-party beneficiary, but not to the extent here urged by respondent. The trend has had to do with allowing a donee beneficiary to recover upon a promise intended for his benefit without a showing of any additional element. The respondent has not shown that this contract of purchase was a contract for his benefit.