author: Stein, J. Rivera, J.

text:
    [80 NE3d 1005, 58 NYS3d 259]
    The People of the State of New York, Respondent, v Chris Price, Appellant.
    Argued April 26, 2017;
    decided June 27, 2017

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Tammy E. Linn of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Anastasia Spanakos, Robert J. Masters, John M. Castellano and Joseph N. Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

On this appeal, we are asked to determine whether the People proffered a sufficient foundation at trial to authenticate a photograph — purportedly of defendant holding a firearm and money — that was obtained from an Internet profile page allegedly belonging to defendant. We conclude that the People’s proof fell short of establishing the requisite authentication to render the photograph admissible in evidence.

I.

Defendant was convicted by a jury of two counts of robbery (Penal Law §§ 160.15 [4]; 160.10 [1]). At the trial, a witness testified that he was conducting milk deliveries with the victim when he noticed — from his vantage point inside the delivery truck — that someone was holding a gun about a foot away from the chest of the victim, who was standing outside the truck. After exchanging words with the gunman, the victim threw a handful of cash from his pocket to the ground. The gunman’s accomplice gathered the money and the two robbers fled. The witness never saw the gunman’s face and was unable to identify defendant at trial as either of the perpetrators.

Following this testimony, the People informed the court that they intended to introduce a photograph that was “found on the internet,” which purportedly depicted defendant holding a handgun. According to the People, the victim would identify the gun in the photograph as the weapon used during the robbery, and a detective would identify defendant as the individual holding the gun in the picture. Defendant objected to the admission of the photograph in evidence, arguing that the People had not proffered a sufficient foundation establishing the authenticity of the photograph as a fair and accurate representation of defendant holding a gun and that the photograph had not been altered. In response, the People contended that the necessary foundation would be established through proof that the photograph was obtained from a publicly available web page that bore an Internet profile associated with defendant’s surname and photographs of him. Over defendant’s renewed objection to the sufficiency of the proffered authentication, the court ruled that the photograph would be admissible in connection with the proposed testimony.

Thereafter, the victim testified to the circumstances of the robbery, and he identified defendant as the gunman. The victim described the firearm used in the robbery as a 9 millimeter automatic with a silver rectangular feature on the top of the barrel, but he admitted that he had no prior familiarity with firearms. When shown the portion of the photograph obtained from the website depicting the gun, the victim testified that the gun looked “similar” to the gun used in the robbery, but he could not identify the gun in the photograph as the one held by the robber.

A police detective subsequently testified that she found the photograph in question on the website “BlackPlanet.com.” The detective had searched defendant’s surname “Price” and, after scrolling through several pages of results containing approximately 50 Internet profiles — the usernames of which incorporated the term “Price” — the detective saw a public profile that contained several photographs of defendant and had the user name “Price_OneofKind.” There was no reference to defendant’s full name on the profile page and, while the detective testified that the profile page listed the purported user’s age and hometown, she did not testify as to whether any of this information matched defendant’s pedigree information. Nor were any of the pages containing this pedigree information introduced to connect defendant to the specific user of this website.

The photograph at issue was posted to the Internet profile page several months before the robbery. The detective testified that the individual in the photograph holding the handgun “lookfed] like” defendant. She explained that she had printed the photograph from the Internet website, and she asserted that the printout was a true and accurate depiction of the photograph she observed on the website. However, the detective admitted that she did not know who took the photograph, when it was taken, where it was taken, or under what circumstances it was taken. Nor did she know whether the photograph had been altered or was a genuine depiction of that which it appeared to depict. Nevertheless, after the photograph was admitted into evidence over defendant’s objection, the detective identified defendant as the individual in the picture.

During summations, the People urged the jury to conclude that the photograph was taken from an Internet profile page belonging to defendant, and they emphasized that the victim “recognized” the gun depicted in the photograph as the one held by the gunman. Following deliberations, the jury found defendant guilty of both counts of robbery.

Upon defendant’s appeal, the Appellate Division affirmed the judgment of conviction, holding that “the People laid a proper foundation for admission of the photograph, it was relevant to the issue of the defendant’s identity as the gunman, and its probative value outweighed any prejudicial effect” (127 AD3d 995, 996 [2d Dept 2015]). A Judge of this Court granted defendant leave to appeal (25 NY3d 1206 [2015]).

II.

Defendant argues that the trial court erred by admitting into evidence the photograph obtained from the Internet because the People failed to sufficiently authenticate it. Defendant contends that the People’s authentication proffer was lacking because the victim could not identify the firearm in the image and because the People presented no evidence that the photograph was genuine and had not been altered. The People argue in response that the photograph was sufficiently authenticated by the detective’s testimony that the printout was a fair and accurate representation of the image shown on the Internet profile page, combined with the indicia suggesting that the profile belonged to defendant.

“In order for a piece of evidence to be of probative value, there must be proof that it is what its proponent says it is. The requirement of authentication is thus a condition precedent to admitting evidence” (United States v Sliker, 751 F2d 477, 497 [2d Cir 1984]; see 1-4 David M. Epstein et al., New York Evi-dentiary Foundations § A [2016]). “Accuracy or authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it” (People v McGee, 49 NY2d 48, 59 [1979]). We have explained that “[t]he foundation necessary to establish [authenticity] may differ according to the nature of the evidence sought to be admitted” (id.). For example, mere identification by one familiar with an item of evidence may suffice where the item is distinct or unique (see People v Julian, 41 NY2d 340, 343 [1977]; see e.g. People v Flanigan, 174 NY 356, 368 [1903]). Where a party seeks to admit tape recordings, authenticity may often be established by testimony from a participant in the conversation attesting to the fact that the recording is a fair and accurate reproduction of the conversation (see People v Ely, 68 NY2d 520, 527 [1986]; People v Arena, 48 NY2d 944, 945 [1979]). In addition, testimony establishing a chain of custody may suffice to demonstrate authenticity in other circumstances (see e.g. Julian, 41 NY2d at 343; Amaro v City of New York, 40 NY2d 30, 35 [1976]; People v Connelly, 35 NY2d 171, 174 [1974]; see also People v Patterson, 93 NY2d 80, 84 [1999]; Ely, 68 NY2d at 528). Ultimately, “[t]he availability of these recognized means of authentication should ordinarily allow for and promote the general, fair and proper use of new technologies, which can be pertinent truth-yielding forms of evidence” (Patterson, 93 NY2d at 84).

With respect to photographs, we have long held that the proper foundation should be established through testimony that the photograph “accurately represents the subject matter depicted” (People v Byrnes, 33 NY2d 343, 347 [1974]; see Patterson, 93 NY2d at 84; 1-4 David M. Epstein et al., New York Evidentiary Foundations § I [2016]; Prince, Richardson on Evidence § 4-212 [2008]; Fisch on New York Evidence § 142 at 82-83 [2d ed 1977]). “Rarely is it required that the identity and accuracy of a photograph be proved by the photographer. Rather, since the ultimate object of the authentication requirement is to insure the accuracy of the photograph sought to be admitted into evidence, any person having the requisite knowledge of the facts may verify,” or an expert may testify that the photograph has not been altered (Byrnes, 33 NY2d at 347 [citations omitted]; see Patterson, 93 NY2d at 84).

The People failed to authenticate the photograph through any of these methods at trial, as the victim was unable to identify the weapon as that which was used in the robbery, and no other witnesses testified that the photograph was a fair and accurate representation of the scene depicted (see People v Marra, 21 NY3d 979, 981 [2013], affg 96 AD3d 1623, 1625-1626 [4th Dept 2012]; Byrnes, 33 NY2d at 347; Alberti v New York, Lake Erie & W. R.R. Co., 118. NY 77, 88 [1889]; see also Zegarelli v Hughes, 3 NY3d 64, 69 [2004]) or that it was unaltered. Indeed, the People do not claim, on appeal, to have satisfied the traditional authentication requirements.

Rather, the People argue that authentication of the photograph by a witness with personal knowledge of the scene depicted or through expert testimony is unnecessary in cases such as this, where the photograph at issue is obtained from an Internet profile page that the People claim is controlled by defendant. To that end, the People point out that courts of several other jurisdictions have adopted a two-pronged analysis for authenticating evidence obtained from Internet profiles or social media accounts. This approach allows for admission of the proffered evidence upon proof that the printout of the web page is an accurate depiction thereof, and that the web page is attributable to and controlled by a certain person, often the defendant (see e.g. State v Jones, 318 P3d 1020, *5-6 [Kan Ct App 2014]; Smoot v State, 316 Ga App 102, 109-111, 729 SE2d 416, 425-426 [2012]; United States v Bansal, 663 F3d 634, 667 [3d Cir 2011]; Tienda v State, 358 SW3d 633, 642 [Tex Crim App 2012]). The courts that have adopted this approach have generally held that circumstantial evidence, such as identifying information and pictures, may be used to authenticate a profile page or social media account as belonging to the defendant. Relying on these out-of-state cases, the People contend that the detective’s testimony identifying and describing the profile page she found on BlackPlanet.com, combined with her testimony that the printout was an accurate representation of the photograph displayed thereon, provided sufficient authentication evidence to allow admission of the photograph. We disagree.

Assuming without deciding that a photograph may be authenticated through the method proposed by the People, the evidence presented here of defendant’s connection to the website or the particular profile was exceedingly sparse. For example, notably absent was any evidence regarding whether defendant was known to use an account on the website in question, whether he had ever communicated with anyone through the account, or whether the account could be traced to electronic devices owned by him. Nor did the People proffer any evidence indicating whether the account was password protected or accessible by others, whether non-account holders could post pictures to the account, or whether the website permitted defendant to remove pictures from his account if he objected to what was depicted therein. Without suggesting that all of the foregoing information would be required or sufficient in each case, or that different information might not be relevant in others, we are convinced that the authentication requirement cannot be satisfied solely by proof that defendant’s surname and picture appears on the profile page. Thus, even if we were to accept that the photograph could be authenticated through proof that the web page on which it was found was attributable to defendant, the People’s proffered authentication evidence failed to actually demonstrate that defendant was aware of — let alone exercised dominion or control over — the profile page in question (see United States v Vayner, 769 F3d 125, 132-133 [2d Cir 2014]; Commonwealth v Williams, 456 Mass 857, 869, 926 NE2d 1162, 1172-1173 [2010]; compare Jones, 318 P3d at *6; Moore v State, 295 Ga 709, 713, 763 SE2d 670, 674 [2014]).

III.

In sum, the People failed to demonstrate that the photograph was a fair and accurate representation of that which it purported to depict. Nor — assuming adoption of the test urged by the People (or some variation thereof) — did the People present sufficient evidence to establish that the web page belonged to, and was controlled by, defendant. Thus, although the decision of whether to admit or preclude evidence generally rests within the discretion of the trial court (see Patterson, 93 NY2d at 84), admission of the photograph here lacked a proper foundation and, as such, constituted error as a matter of law. Furthermore, on the facts of this case, we cannot conclude that the error was harmless (see generally People v Crimmins, 36 NY2d 230, 242 [1975]).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Rivera, J.

(concurring). I agree with the majority that the People failed to authenticate the computer printout and its admission was reversible error, entitling defendant to a new trial (majority op at 474). The case presents a novel question as to how a party may authenticate a printout of a digital image found on a social media website. However, the majority does not adopt a test to apply in determining that the foundational proof was insufficient. I write to clarify why the People’s authentication proof comes up short.

At defendant’s trial on two counts of armed robbery (Penal Law §§ 160.15 [4]; 160.10 [1]), the People sought to admit a printout of a digital image obtained on a website called “Black-Planet, com.” The People argued that the printout depicted defendant holding the gun used in the robbery. There is no dispute that the printout depicts a person holding a gun and money. The court admitted the evidence, concluding that a proper foundation had been laid after a detective identified defendant’s face in the top half of the printout, and the victim identified the gun in the bottom half as a gun that “looks similar to the gun that took place in the robbery.” The Appellate Division affirmed the judgment, specifically rejecting defendant’s argument that the People failed to adequately authenticate the printout (People v Price, 127 AD3d 995, 996 [2d Dept 2015]).

Before this Court, defendant renews his authentication challenge. Defendant and the People propose different tests for authenticating social media evidence, each claiming their respective test best reflects the requirements of our prior case law and accounts for the risk of tampering associated with social media images. Although I do not adopt defendant’s proposed test, he is correct that the People’s proof was inadequate in this case.

The decision whether to admit or exclude evidence “may be disturbed by this Court only when no legal foundation has been proffered or when an abuse of discretion as a matter of law is demonstrated” (People v Patterson, 93 NY2d 80, 84 [1999]). “In determining whether a proper foundation has been laid for the introduction of real evidence, the accuracy of the object itself is the focus of inquiry” (People v McGee, 49 NY2d 48, 59 [1979]). “Accuracy or authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it” (id.).

We have long recognized that authentication is not subject to a one-size-fits all approach but, rather, the proof necessary to establish the reliability of the proposed evidence “may differ according to the nature of the evidence sought to be admitted” (id.). Authentication may be established by direct or circumstantial evidence, and “reasonable inferential linkages can ordinarily supply foundational prerequisites” so long as the “tie-in effort” is not “too tenuous and amorphous” (Patterson, 93 NY2d at 85). In other words, the party seeking to admit evidence may rely on a variety of proof, alone or in combination, to meet its burden of establishing the reliability of the evidence (see People v Ely, 68 NY2d 520, 527 [1986] [“The necessary foundation may be provided in a number of different ways”]). While certain types of proof by their nature may establish authentication for categories of evidence, previously “noted methods of authentication are not exclusive” (Patterson, 93 NY2d at 84). A court’s determination as to the sufficiency of proof in any particular case is a fact-specific enterprise, which turns on the purpose of the evidence sought to be admitted (see e.g. People v Julian, 41 NY2d 340, 343 [1977] [“Proof of a complete chain of custody is one accepted technique for showing the authenticity of a fungible item of real evidence”]; People v Kinne, 71 NY2d 879, 880 [1988] [authentication certificate on a business record may “replace( ) the testimony of a live witness”]; People v Lynes, 49 NY2d 286, 293 [1980] [“substance of the conversation” may supply “criteria of reliability”]). Thus, our precedent establishes that the test for authentication is flexible and responds to the factual nuances of each case.

As with other evidentiary matters, when presented with a question of authentication, the trial court’s task is to determine whether the party offering the evidence has made a sufficient threshold showing of reliability so that the evidence may be submitted to the jury (see Lynes, 49 NY2d at 293 [a judge may leave it to the jury to decide whether the evidence implicates defendant or some other person]; People v Dunbar Contr. Co., 215 NY 416, 422-423 [1915] [trial judge did not err in allowing the jury to determine whether defendant was the speaker in a telephone conversation submitted as evidence]). It is for the jury then to determine the weight of the evidence and whether it implicates the defendant in the crime charged (Dunbar, 215 NY at 423 [“The question before the trial judge was whether he would exclude the conversation altogether, or receive it and allow the jury to say whether (defendant) was the speaker”]; Lynes, 49 NY2d at 293 [“(I)t cannot be said as a matter of law that the Trial Judge erred in leaving it to the jury — aided as it could be by the instruments of cross-examination, counsels’ arguments and other fact-finding tools available at the trial level — to decide whether . . . the speaker was sufficiently identified” (internal quotation marks omitted)]).

Given the general population’s mass consumption and use of social media, “[predictably, social media postings are becoming an important source of evidence” (Imwinkelried, Evidentiary Foundations § 4.02 [6] [9th ed 2014]; see also Hon. Paul W. Grimm, Authentication of Social Media Evidence, 36 Am J Trial Advoc 433 [2013]). Courts have recognized that this evidence presents unique challenges (see e.g. Lorraine v Markel Am. Ins. Co., 241 FRD 534, 537 [D Md 2007]; Tienda v State, 358 SW3d 633, 639 [Tex Grim App 2012]; Parker v State, 85 A3d 682, 685-686 [Del 2014]). As some commentators have noted, “social media is often stored on remote servers, is accessed through unique interfaces, can be dynamic and collaborative in nature, and is uniquely susceptible to alteration and fabrication” (H. Christopher Boehning & Daniel J. Toal, Authenticating Social Media Evidence, NYLJ, Oct. 2, 2012 at 5 [2012]). Arguably, traditional approaches to authentication are inadequate because these new online platforms “can complicate the application of those traditional concepts, and we must be prepared to deal with these complications” (David I. Schoen, The Authentication of Social Media Postings, ABA Trial Evidence Committee [May 17, 2011], available at https:// apps.americanbar.org/litigation/committees/trialevidence/ articles/0517ll-authentication-social-media.html). On this appeal, we are squarely presented with the question of how our flexible authentication standard applies to social media images. Therefore, we have the opportunity to resolve an eviden-tiary issue of growing concern given the proliferation and ubiquitousness of social media.

Here, the People sought to establish that the printout was a digital image from defendant’s web page. The majority concludes that the People failed to submit testimony that courts have previously found sufficient to authenticate a photograph: testimony from a forensic computer expert, the person who took the picture, or a third party who either was present at the time or who has personal knowledge about the accuracy of the image (majority op at 477-478). The majority does not decide whether the People may only rely on this type of proof, or whether other evidence would suffice. In response to the People’s proposed test for the authentication of social media evidence, the majority states that, “[a]ssuming without deciding that a photograph may be authenticated through the method proposed by the People, the evidence presented here . . . was exceedingly sparse,” and then concludes that “the authentication requirement cannot be satisfied solely by proof that defendant’s surname and picture appears on the profile page” (majority op at 478-479). This approach hints at, but does not confirm, the proof that would satisfy the People’s burden. However, we cannot know whether the printout of the digital image was authenticated without knowing how to measure the adequacy of the People’s proof (see Stop the Beach Re nourishment, Inc. v Florida Dept. of Environmental Protection, 560 US 702, 716, 737 [2010] [rejecting the concurrence’s insistence that “this case does not require those questions to be addressed” because “(o)ne cannot know whether a takings claim is invalid without knowing what standard it has failed to meet”]).

Turning to the merits, whether the People’s evidence was sufficient to authenticate the social media digital image depends on the purpose for which it was offered. The People argued that the printout was an accurate representation of an image from defendant’s web page, and that it depicted him with the gun used in the crime. Essentially, the People sought to establish the reliability of the image by connecting defendant to a web page that belonged to him.

The People’s proof had to first overcome two levels of authentication. Given the People’s purpose for seeking admission of the image, I would hold that the People had to establish that: (1) the printout was an accurate representation of the-web page; and (2) the page was defendant’s, meaning he had dominion and control over the page, allowing him to post on it. It is undisputed that the People proved, through the detective’s testimony, that the printout was an accurate representation of the digital image she viewed on the BlackPlanet.com website. Crucially, however, the People failed to establish that this was defendant’s web page, by direct or circumstantial evidence, or with proof establishing “reasonable inferential linkages [that] ordinarily supply foundational prerequisites” (.Patterson, 93 NY2d at 85). Like in Patterson, the “tie-in effort” between the testimony relied on by the People here, and the purpose for which the printout was submitted, was “too tenuous and amorphous” (id.). In other words, the People did not submit proof by which a reasonable jury could conclude that the printout was an accurate representation of defendant’s profile page. Although the majority does not expressly adopt this requirement, I agree with my colleagues’ conclusion that “the authentication requirement cannot be satisfied solely by proof that defendant’s surname and picture appears on the profile page” (majority op at 479).

The People had knowledge of personal information posted on the web page which might have established the necessary link to defendant, but the People did not present that evidence as part of the proffer. Other evidence arguably addresses the authentication of the web page and the depiction therein, such as proof that the defendant posted or adopted the photograph, or knew of the photograph and allowed it to remain on the profile page without objection. However, given the deficiency of the proof actually submitted, I agree with the majority (majority op at 479 n 3), we need not consider whether proof that the web page belonged to defendant could also establish that the image depicted was genuine (McGee, 49 NY2d at 59). In other words, since the People did not link defendant to the web page where the image was found, there is no need to consider on this appeal what must be shown to satisfy McGee’s requirement that “there has been no tampering with” the proffered evidence (id.). That question is left for a future case.

This approach respects the role of the judge and jury. If the People satisfy their burden then the court may exercise its discretion to admit the evidence, assuming it otherwise meets the rules for admission (i.e., relevance, whether the probativeness of the evidence outweighs any potential unfair prejudice). Once the People have met these threshold requirements, that is, once a printout from a social media web page is authenticated, it is for the jurors to decide whether they find the evidence persuasive on an issue in the case (see Lynes, 49 NY2d at 293; Dunbar Contr. Co., 215 NY at 422-423; Evidence in New York State and Federal Courts § 9:7 [2d ed 5A West’s NY Prac Series] [“the judge alone determines the specimen’s authenticity, subject to the jury’s right to reject the judge’s finding of genuineness”]; CJI2d[NY] Instructions of General Applicability — Role of Court and Jury).

As is the usual case, the defendant is free to challenge the reliability of the evidence, and suggest other inferences. and interpretations of the People’s proof. A defendant may submit evidence on rebuttal that the photo is unreliable, for example, with proof from the person who altered the photo, proof that the defendant disavowed the photo on the web page, or a copy of the original, unaltered photo. It is then for the jury to weigh the evidence and ultimately decide.

Chief Judge DiFiore and Judges Fahey and Wilson concur; Judge Rivera concurs in result in an opinion in which Judge Garcia concurs; Judge Feinman taking no part.

Order reversed and a new trial ordered.

      . The concurrence insists upon referring to the photograph as a “digitized rendition posted on a social media site.” Such characterization does not alter the fact that the People proffered the image as a photograph purporting to depict a real-life, accurate, and genuine representation of defendant holding a firearm.

      . The concurrence appears to confuse authentication with relevance. To be sure, Appellate Division Departments have found in-court testimony from witnesses who claim that they have observed a defendant possessing a weapon similar to that which is alleged to have been used in a crime to be relevant. In such cases, however, there is no question as to the authenticity of a witness’s testimony (see e.g. People v Gonzalez, 88 AD3d 480, 480 [1st Dept 2011], lv denied 18 NY3d 924 [2012]; People v Rivera, 281 AD2d 702, 703 [3d Dept 2001], lv denied 96 NY2d 805 [2001]; People v Brown, 266 AD2d 863, 863 [4th Dept 1999], lv denied 94 NY2d 860 [1999]). Contrary to the concurrence’s analysis, the People here did not seek merely to “establish that the printout was a digital image from defendant’s web page” (concurring op at 483). Rather, the People sought to prove that defendant actually possessed the firearm used in the robbery. In other words, the photograph here was proffered only for the truth of its contents and, therefore, was relevant only insofar as it is a fair and accurate representation of that which it purports to depict. While fabricated or altered photographs found on a defendant’s Internet profile page may, in some other cases, be relevant regardless of the photograph’s authenticity — for example, if offered to show a defendant’s state of mind, familiarity with another person, or knowledge of something relevant to the case — the People proffered no such purpose at trial for the photograph at issue here.

      . We disagree with the assertion of our concurring colleagues that we should not decide this appeal without conclusively adopting a general and comprehensive test for authentication to be applied, not only in this case, but in all cases involving authentication of photographs found on a social network web page. Because we conclude that the proffer was insufficient under any potential standard for authentication — whether it be the traditional method of authenticating a photograph or the standard offered by the People (or some variation thereof) — we need not go any further than deciding the case presently before us (cf. Matter of Solla v Berlin, 24 NY3d 1192, 1195 [2015] [even assuming, without deciding, adoption of petitioner’s proposed definition, petitioner would not prevail on appeal], rearg denied 25 NY3d 1063 [2015]; People v Basile, 25 NY3d 1111, 1113 [2015] [holding that the Court need not reach the question presented by defendant on appeal “because, even assuming that defendant is correct, he would not be entitled to relief on this record”]). “We reject the premise that we must now declare that one test would be appropriate for all situations, or that the proffered tests are the only options that should be considered” (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1, 27 [2016]). In our view, it is more prudent to proceed with caution in a new and unsettled area of law such as this. We prefer to allow the law to develop with input from the courts below and with a better understanding of the numerous factual variations that will undoubtedly be presented to the trial courts. Because we necessarily decide each case based on the facts presented therein, it would be premature to decide whether the People’s proffer would have been sufficient had the prosecution, hypothetically, established that the web page was controlled by defendant. At this time, it is sufficient and appropriate for us to hold that, based on the proffer actually made, the photograph was not admissible.

      . To avoid confusion with our prior case law on the authentication of photographs, and to more precisely describe that the evidence offered for admission here was a digitized rendition posted on a social media site, I refer to the proffered evidence as a “printout of a digital image” rather than as a “photograph” (majority op at 474).

      . Contrary to the majority’s claim, when we decide an open question presented on appeal we do not act in haste (majority op at 479 n 3). Rather, we pronounce the law by which we reason an outcome. Given the pervasive use of social media, there is nothing premature about determining how law enforcement and prosecutors may use evidence obtained online (see David I. Schoen, The Authentication of Social Media Postings, ABA Trial Evidence Committee [May 17, 2011]).

      . In some contexts we may resolve a matter by “[ajssuming, without deciding” a legal fact or applicable standard (see e.g. Matter of East Ramapo Cent. Sch. Dist. v King, 29 NY3d 938, 939-940 [2017]; People v Fisher, 28 NY3d 717, 725 [2017]; People v Augustine, 21 NY3d 949, 951 [2013]; People v Cornelius, 20 NY3d 1089, 1091 [2013]; Quilloin v Walcott, 434 US 246, 256 [1978]; Smith v Spisak, 558 US 139, 156 [2010]). That approach is appropriate where the Court assumes a threshold fact necessary to the resolution of the issue on appeal or decides between two or more well-established rules (see Stop the Beach, 560 US at 718). It is one thing to hold that, for example, assuming there was error, it was harmless, but it is quite another to assume a test applies, and hold that it has not been satisfied. In the former case, what the Court assumes is, in actuality, immaterial to the outcome, but in the latter case — as illustrated by defendant’s appeal — what the court assumes is precisely necessary to resolving the issue presented.

      . Given the lack of adequate evidence connecting defendant to the web page, the Court has no occasion to address the sufficiency of the victim’s identification of the gun. Nevertheless, the majority concludes the People failed to authenticate the printout, in part, because the victim “could not identify the gun in the photograph as the one held by the robber” (majority op at 475). Yet, only in unusual circumstances will a victim be able to testify with confidence that the proffered evidence matches exactly the weapon used during the commission of the crime. More likely, a victim will be able to testify only that the evidence looked “like” the weapon used, as the victim did here. Notably, the Appellate Division has decided that this type of testimony is enough to permit admission (People v Gonzalez, 88 AD3d 480, 480 [1st Dept 2011] [evidence of defendant’s possession of a knife that “resembled the knife used in the robbery” one week after the robbery was “clearly relevant”]; People v Rivera, 281 AD2d 702, 703 [3d Dept 2001] [“evidence of defendant’s prior and subsequent possession of a firearm resembling the one used in the present crimes was admissible for the purpose of identifying defendant as the perpetrator”]; People v Brown, 266 AD2d 863, 863 [4th Dept 1999] [evidence that defendant possessed a handgun similar to the gun used in the crime four days before “was admissible to establish defendant’s identity”]; People v Jackson, 237 AD2d 620, 620 [2d Dept 1997] [“trial court properly admitted into evidence testimony that five days after the crime, the defendant possessed a weapon resembling the weapon used in the crime” as proof of defendant’s identity]). As this Court has stated, “certainty [is] not necessary” to establish admissibility (People v Dunbar Contr. Co., 215 NY 416, 423 [1915]). While the majority observes that in some of these, the courts held that the evidence was “relevant,” and did not refer to “authentication” (majority op at 477 n 2), the testimony would only be relevant if the weapon were the same as the weapon used during the commission of the crime because in those cases the prior possession was admitted to show identity just as in defendant’s case. These courts certainly must have determined a weapon to be the same as that used during the crime based on testimony that the weapon was “similar.” In any event, whether the gun was properly identified by the victim in this appeal is rendered academic because the People did not connect defendant to the web page. Prudence requires we leave the issue until properly presented in another case.


source: Caselaw Access Project

author: Fahey, J. Wilson, J.

license: Public Domain

text:
    [80 NE3d 1017, 58 NYS3d 271]
    In the Matter of the Estate of Edmund Felix Hennel, Also Known as Edmund Hennel, Deceased. Gregory Hennel et al., Respondents; Hazel Hennel, as Executor of Edmund Felix Hennel, Deceased, Appellant.
    Argued May 31, 2017;
    decided June 29, 2017

      POINTS OF COUNSEL

      Englert, Coffey, Me Hugh & Fantauzzi, Schenectady {Peter V. Coffey of counsel), for appellant.

      Martin, Shudt, Wallace, DiLorenzo & Johnson, Troy (Robert L. Adams and Veronika Grochowalski of counsel), for respondents.
   OPINION OF THE COURT

Fahey, J.

Petitioners seek to enforce an oral promise that would otherwise be void under the statute of frauds. They rely on the theories of promissory estoppel and unconscionability. We agree, as a general matter, that where the elements of promissory estoppel are satisfied and enforcement of the statute of frauds would inflict such an unjust and egregious result upon the party who detrimentally relied on the oral promise that the resulting injury would be unconscionable, the opposing party may be estopped from relying on the statute of frauds. Nevertheless, we conclude that petitioners cannot invoke that doctrine here because application of the statute of frauds would not inflict an unconscionable injury upon petitioners. Although the result may be unfair, it is not unconscionable.

I.

Decedent Edmund Felix Hennel was the owner of a four-unit apartment building (the property) located in Schenectady. Petitioners, decedent’s grandsons, assert that prior to 2006, they had assisted decedent with maintenance of the grounds and snow removal at the property, but had no responsibility for other maintenance duties or rental management. In the summer of 2006, decedent approached petitioners about taking ownership of the property and assuming all management and maintenance duties.

The property was subject to a mortgage. In 2001, decedent had obtained a $100,000 loan, secured by a mortgage on the property. Decedent used the loan proceeds to make cash gifts to six of his family members, including the two petitioners, all of whom were shareholders in the family-owned golf course business. These six shareholders in turn loaned their cash gifts to the golf course business to assist it with operations and provide it with additional working capital. After subsequent disagreements regarding business operations, the shareholders agreed that the company would redeem the shares of the four shareholders other than petitioners. The golf course business repaid those four shareholders for their loans in an amount totaling $63,619.64, leaving petitioners as the sole shareholders of the business by May 2006. Petitioners assert that they explained to decedent that they did not wish to take ownership of the property subject to the mortgage because they believed they would be subsidizing the gifts to the four other former shareholders.

According to petitioners, decedent, in response to their concerns, stated that it was not his intention that petitioners would become responsible for the mortgage. Specifically, decedent orally promised that he would direct his estate to satisfy the balance of the mortgage upon his death from the assets of his estate.

To effectuate this oral bargain, petitioners and decedent met on September 22, 2006 in the office of a family attorney. They executed several documents at that meeting. One of those documents was a warranty deed, in which decedent granted ownership of the property to petitioners. The deed did not mention the mortgage, and it stated that the consideration for the transaction was one dollar. Decedent reserved to himself a life estate in the property. The deed further reserved to decedent the power to appoint the remainder interest to any of his issue other than petitioners during his lifetime. Decedent never exercised that power.

At that same meeting, decedent also executed a will (the 2006 will). As relevant here, the 2006 will provided that the mortgage on the property, if any in existence at the time of decedent’s death, be paid from the assets of his estate.

After the September 2006 meeting, petitioners assumed all management and maintenance duties for the property. They managed income and expenses, handled tenant relations, and made improvements and necessary repairs. Petitioners assert that these activities occupied a significant amount of their time. Petitioners also began making the mortgage payments, which they were able to do entirely with the rental income generated by the property.

In 2008, decedent executed a new will (the 2008 will), which revoked all prior wills and codicils. The 2008 will made no mention of satisfaction of the mortgage on the property upon decedent’s death. Petitioners assert that decedent informed them that he had executed a new will but assured them that there had been “no change” in their agreement with respect to the property. Based on that assertion, petitioners continued to carry out their management and maintenance responsibilities at the property.

Decedent died on December 1, 2010. Decedent’s widow, respondent Hazel Hennel, was named as the executor of his estate in the 2008 will and sought probate. In anticipation of a contest, the 2008 will was admitted to probate and letters testamentary were issued to respondent with the limitation that no assets of the estate could be distributed absent a court order. After filing a claim pursuant to SCPA 1803, which respondent rejected, petitioners commenced the present proceeding pursuant to SCPA 1809 to determine the validity of their claim against decedent’s estate. Their petition included four causes of action: breach of contract, breach of title warranty, promissory estoppel, and unjust enrichment. Respondent objected, asserting, as relevant here, that petitioners’ claim was barred by the statute of frauds.

Both parties subsequently moved for summary judgment. Petitioners supported their motion with, among other things, the deposition testimony of the family attorney, who confirmed the details of the meeting at his office on September 22, 2006, including decedent’s execution of the 2006 will. The attorney testified that it was his understanding that the relevant provision in the 2006 will was designed to ensure that petitioners would own the property free of any mortgage upon decedent’s death.

In her cross motion for summary judgment, respondent did not dispute petitioners’ factual allegations. In support of her cross motion, however, she relied in part upon a residential appraisal report of the property assessing market value for the property at the time of decedent’s death at $235,000. Petitioners stated in their notice of claim that the unpaid principal and interest on the mortgage was $88,394.91. At the time of petitioners’ summary judgment motion, their continued payments had reduced that balance to $82,194.57.

Surrogate’s Court granted petitioners’ motion for summary judgment and directed respondent to satisfy the outstanding balance of the mortgage and reimburse petitioners for the payments made since decedent’s death. The court reasoned that petitioners’ claim fell “squarely within that limited class of cases where promissory estoppel should be applied to remedy a potential injustice” (Matter of Hennel, 40 Misc 3d 547, 558 [Sur Ct, Schenectady County 2013]).

On appeal, a divided Appellate Division affirmed (Matter of Hennel, 133 AD3d 1120 [3d Dept 2015]). The Appellate Division agreed with respondent that “decedent never gave up his right to revoke the provision of the 2006 will regarding the satisfaction of the mortgage in writing, and that his oral commitment to do so runs afoul of the statute of frauds” (133 AD3d at 1122). The Court therefore acknowledged that petitioners were obligated to “bring this case within an exception to the statute of frauds” (id.). The Court concluded that petitioners had done so, however, by establishing that the elements of promissory estoppel were met and that application of the statute of frauds would be unconscionable under the circumstances (see id. at 1122-1123). The dissenting Justices would have held that application of the statute of frauds would not inflict an unconscionable injury upon petitioners, and therefore petitioners could not rely on promissory estoppel to enforce their oral bargain with decedent (see id. at 1124-1126 [Garry, J.P., dissenting]).

Respondent appealed to this Court as of right pursuant to CPLR 5601 (a). We now reverse.

II.

Petitioners concede that the statute of frauds would generally bar reliance on their oral bargain with decedent. As the Appellate Division acknowledged, wills are ambulatory in nature, and decedent was free to revoke or alter his 2006 will until his death (see Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 92 [2008]). Petitioners do not allege that decedent promised never to revoke or alter his 2006 will. In any event, Estates, Powers and Trusts Law § 13-2.1 (a) (2) requires every agreement or promise to make a “testamentary provision of any kind” to be in writing. General Obligations Law § 5-701 (a) (1) further requires any agreement or promise that “[b]y its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime” to be in writing. The Appellate Division therefore correctly held that “petitioners were obliged to bring this case within an exception to the statute of frauds” (Hennel, 133 AD3d at 1122).

Petitioners attempted to do so by relying on the doctrine of promissory estoppel. Although respondent agrees that the statute of frauds will not apply if petitioners can establish the elements of promissory estoppel and that they would otherwise suffer unconscionable injury, this Court has not yet expressly recognized this principle. We adopt it now, for several reasons.

The Restatement (Second) of Contracts endorses the principle that a promise inducing reasonable reliance “is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise” (Restatement [Second] of Contracts § 139 [1]; see also 10 Richard A. Lord, Williston on Contracts §§ 27:14-27:15 at 185-206 [4th ed 2011]; 4 Corbin on Contracts § 12.8 at 38-44 [1997]). This Court has previously cited section 139 of the Restatement with approval (see Farash v Sykes Datatronics, 59 NY2d 500, 504-505 [1983]).

This Court has also recognized that the related doctrines of equitable estoppel and part performance may preclude application of the statute of frauds under certain circumstances (see e.g. American Bartenders School v 105 Madison Co., 59 NY2d 716, 718 [1983], affg 91 AD2d 901 [1st Dept 1983]; Anostario v Vicinanzo, 59 NY2d 662, 663-664 [1983]; Woolley v Stewart, 222 NY 347, 350-351 [1918]; cf. Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 234 n 1 [1999] ). Furthermore, the Appellate Division departments have unanimously recognized that promissory estoppel may preclude enforcement of the statute of frauds if application of the statute would result in unconscionability (see e.g. Carvel Corp. v Nicolini, 144 AD2d 611, 612-613 [2d Dept 1988]; Bernard v Langan Porsche Audi, 143 AD2d 495, 496 [3d Dept 1988]; American Bartenders School, 91 AD2d at 902; Buddman Distribs. v Labatt Importers, 91 AD2d 838, 839 [4th Dept 1982]; Swerdloff v Mobil Oil Corp., 74 AD2d 258, 261-264 [2d Dept 1980], lv denied 50 NY2d 803, 913 [1980]).

Finally, this equitable doctrine is grounded in sound principles of fairness. As this Court has stated in a different context,

“The Statute of Frauds was designed to guard against the peril of perjury; to prevent the enforcement of unfounded fraudulent claims. But, as Professor Williston observed: ‘The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made’ ” (Morris Cohon & Co. v Russell, 23 NY2d 569, 574 [1969], quoting 4 Williston on Contracts § 567A at 19-20 [3d ed 1961]).

In other words, equity “will not permit the statute of frauds to be used as an instrument of fraud” (Wood v Rabe, 96 NY 414, 425 [1884]).

We hold that where the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds.

III.

Respondent contends that the Appellate Division erroneously concluded that the elements of promissory estoppel were established and that decedent acknowledged a legal obligation to satisfy the mortgage (see Hennel, 133 AD3d at 1122). We need not resolve that question on this appeal, however, because even assuming for the sake of argument that petitioners established the elements of promissory estoppel, and viewing the facts in the light most favorable to petitioners, petitioners would not suffer unconscionable injury if the statute of frauds were enforced. Petitioners’ motion for summary judgment therefore should have been denied, and respondent is entitled to summary judgment.

In the similar context of unconscionable contracts, we have stated that an unconscionable agreement is

“one such as no person in his or her senses and not under delusion would make on the one hand, and as no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” (Christian v Christian, 42 NY2d 63, 71 [1977] [internal quotation marks, brackets, and citations omitted]; see generally Gillman v Chase Manhattan Bank, 73 NY2d 1, 10-12 [1988]; Mandel v Liebman, 303 NY 88, 94-96 [1951]).

The standard for unconscionability where one party is seeking to avoid the statute of frauds must be equally demanding, lest the statute of frauds be rendered a nullity. As the Second Circuit aptly observed in Philo Smith & Co., Inc. v USLIFE Corp. (554 F2d 34 [2d Cir 1977]):

“The strongly held public policy reflected in New York’s Statute of Frauds would be severely undermined if a party could be estopped from asserting it every time a court found that some unfairness would otherwise result. For this reason, the doctrine of promissory estoppel is properly reserved for that limited class of cases where the circumstances are such as to render it unconscionable to deny the promise upon which the plaintiff has relied” (id. at 36 [internal quotation marks omitted]).

Petitioners’ proof here “fell well short” of demonstrating an unconscionable injury sufficient to estop respondent’s reliance on the statute of frauds (id.). Importantly, petitioners were able to make the mortgage payments entirely from the rental income generated by the property. Petitioners do not allege that they expended any personal funds to pay the mortgage or manage and maintain the property (cf. Castellotti v Free, 138 AD3d 198, 204-205 [1st Dept 2016]; Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 796-797 [3d Dept 2002]). In addition, petitioners do not allege that there is any reason to believe that the rental income will be insufficient to satisfy the mortgage payments in the future. To the contrary,'petitioners characterized the property as a “break even” business.

Although petitioners assert that they expended significant time in managing and maintaining the property, as the Appellate Division dissent noted, “there was no claim that petitioners’ management responsibilities were so overwhelming that they were forced to neglect other business responsibilities or sacrifice other opportunities” (Hennel, 133 AD3d at 1126 [Garry, J.P., dissenting]). Furthermore, petitioners’ efforts were ultimately to their benefit, as they maintained the value of the property they now own.

Petitioners contend that the key factors establishing unconscionability stem from the use to which decedent put the loan proceeds and the fact that he misled petitioners after he executed the 2008 will. We disagree. The fact that decedent used the loan proceeds to make cash gifts to family members, which they then loaned to the golf course business, is irrelevant. Those loans infused the golf course business with desired capital, and petitioners would have been required to buy out the other shareholders regardless of the source of those loans if they were to own the business themselves, as they now do.

Furthermore, assuming that decedent misled petitioners about his 2008 will, petitioners still cannot demonstrate that they will suffer unconscionable injury if the statute of frauds is enforced. Petitioners did not dispute respondent’s appraisal stating that the property was worth approximately $235,000. If they so choose, petitioners could sell the property, satisfy the balance of the mortgage, and realize the approximately $150,000 of equity remaining in the property. It bears noting that, because of fluctuations in the real estate market and other eventualities, a remainder interest in a life estate generally does not come with an assurance of any particular amount of equity at the time fee simple ownership is obtained. That is particularly true here, where decedent had the power to grant the remainder interest to his issue other than petitioners at any time before his death (see Hennel, 133 AD3d at 1124 [Garry, J.P., dissenting]).

Petitioners essentially contend that they were entitled to the full equity of $235,000 in the property pursuant to their oral bargain with decedent, but received only $150,000 in equity instead because decedent failed to fulfill his oral promise to satisfy the mortgage upon his death. In short, petitioners allege that they did not receive the full benefit of their oral bargain. If these facts were sufficient to prevent application of the statute of frauds, the statute of frauds would be “severely undermined” (Philo Smith, 554 F2d at 36). Whenever an oral agreement is rendered void by the statute of frauds, one or both parties will be deprived of the benefit of their oral bargain, and some unfairness will typically result. But what is unfair is not always unconscionable. For these reasons, cases where the party attempting to avoid the statute of frauds will suffer unconscionable injury will be rare.

Here, viewing the facts in the light most favorable to petitioners, application of the statute of frauds does not render a result so inequitable and egregious “as to shock the conscience and confound the judgment of any person of common sense” (Christian, 42 NY2d at 71 [internal quotation marks and alteration omitted]). Respondent demonstrated that petitioners would not suffer unconscionable injury if the statute of frauds were applied, and petitioners failed to raise a disputed issue of material fact in opposition.

We respectfully disagree with our dissenting colleague that remittal is the appropriate remedy. Petitioners mentioned “just debts” as a factual assertion in their petition in support of their four causes of action, and they alleged that the obligation to pay the mortgage was a “just debt” of the estate only if the court agreed with their position on one of those four causes of action. Specifically, petitioners alleged that the obligation to pay the mortgage was a “just debt” because “on September 22, 2006 the decedent became bound in contract, by express warranty of title, and by application of common law principles to pay any mortgage existing at death and no unilateral change, by decedent alone, by new Will or otherwise, can prejudice the Petitioners’ rights.” Petitioners did not allege that the estate was obligated to satisfy the mortgage as a “just debt” even if decedent had never promised to satisfy the mortgage upon his death, or had not become legally bound by that promise. Inasmuch as we disagree with petitioners that decedent was bound by their oral bargain, remittal to the Appellate Division to consider the “just debts” issue would be inconsistent with our holding. In addition, neither party has raised any argument before this Court concerning that issue.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion by respondent for summary judgment dismissing the claim of petitioners granted.

Wilson, J.

(dissenting). I am in the odd position of endorsing everything in the majority’s opinion except the result. Instead of reversing, the matter should be remitted to the Appellate Division for resolution of the Surrogate’s Court’s alternative holding — that decedent’s estate was obligated to satisfy the mortgage as a “just debt.” The Appellate Division expressly bypassed that issue because of its holding for petitioners on promissory estoppel grounds.

The first article of decedent’s last will and testament directs the executor to make “payment of any and all just debts.” In Surrogate’s Court, petitioners repeatedly argued that the estate should pay the mortgage balance because it was a “just debt.” In the opening paragraph of their affidavit supporting their claim pursuant to SCPA 1803, they “demanded] that the estate discharge [the mortgage] as a ‘just debt’ of the estate” (see aff supporting notice of claim, June 28, 2011, ¶ 1). Later, they alleged that because the 2008 will required the payment of just debts, “and the obligation to pay the mortgage debt at issue is one of [those] just debts,” the estate had an obligation to satisfy it (see id. f 15 [internal quotation marks omitted]). Thus, at the time they filed the notice, petitioners “intend [ed] to petition for a construction of the Will’s directive to pay ‘just debts’ as including the obligation to pay this mortgage debt, and seek such other and further relief as is just and proper” {id. f 22).

Later, in their verified petition to adjudicate the notice of claim, petitioners again averred that the estate was required to satisfy the mortgage as a “just debt” (see verified petition, Dec. 19, 2011, ¶¶ 2, 18).

After ruling for petitioners on promissory estoppel grounds, the Surrogate’s Court’s decision and order independently addressed the “just debts” claim, stating that “ [i] t is also worth mentioning here that despite the omission from the decedent’s 2008 will of the language contained in article fifth of his 2006 will, the court finds that the mortgage debt is a ‘just debt’ of the decedent and must be paid by the estate pursuant to article first of the 2008 will” (Matter of Hennel, 40 Misc 3d 547, 560 [Sur Ct, Schenectady County 2013]).

The Surrogate’s Court then rejected respondent’s argument that EPTL 3-3.6 relieved the estate of the obligation to satisfy the mortgage as a just debt, holding that the statute was inapplicable because the property was not “specifically disposed of by will or pass[ed] to a distributee,” and had instead been conveyed by deed, four years before decedent died (see id.). Petitioners all along presented the “just debts” claim as distinct from their promissory estoppel claim, and the Surrogate did the same, grounding it in an interpretation of the decedent’s directive in the first article of his 2008 will.

The Surrogate’s Court “exercise [s] full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates” (SCPA 201), and its decision that the mortgage should be paid as a “just debt” is law of the case unless disturbed on appeal. The Appellate Division held that the estate was required to pay the mortgage under principles of promissory estoppel (133 AD3d 1120 [3d Dept 2015]). The majority did mention the “just debts” claim, but expressly avoided it:

“As a final matter, respondent asserts that the provision of the 2008 will directing payment of all ‘just debts’ owed by decedent’s estate was inapplicable to petitioners’ claim. Even assuming that she is correct, Surrogate’s Court remained well within its right ‘to determine all matters both legal and equitable necessary to the settlement of a decedent’s estate’ by directing respondent to satisfy a valid claim against the estate” (id. at 1123, quoting Matter of Garofalo, 141 AD2d 899, 901 [3d Dept 1988], citing SCPA 201).

The Appellate Division, therefore, did not decide the “just debts” claim, but instead held that even if the first article of decedent’s will did not require payment of the mortgage as a “just debt,” the mortgage debt was a “valid claim against the estate” by virtue of the Court’s holding on promissory estoppel, which the Surrogate’s Court had the authority to direct the estate to pay. The parties did not brief or argue the “just debts” issue in this Court, so the Surrogate’s Court’s determination remains law of the case, meaning we cannot reverse and order judgment for respondent. The correct result here should be to remit the matter to the Appellate Division to determine the “just debts” issue (see Helmsley-Spear, Inc. v Fishman, 11 NY3d 470, 477 [2008] [where Appellate Division found plaintiffs’ claim preempted by federal law and did not address additional argument, and this Court reversed on preemption issue, remit-tal appropriate for “consideration of issues raised but not determined on appeal to that court”]; Lennard v Mendik Realty Corp., 8 NY3d 909, 910 [2007]).

Accordingly, much as it pains me to dissent from a beautifully written majority opinion, I must.

Chief Judge DiFiore and Judges Rivera, Stein and Garcia concur; Judge Wilson dissents in part in an opinion; Judge Feinman taking no part.

Order reversed, with costs, and the motion by respondent Hazel Hennel, as Executor of Edmund Felix Hennel, Deceased, for summary judgment dismissing the claim of petitioners Gregory Hennel et al. granted.

      . Petitioner Gary J. Hennel died while the appeal was pending in the Appellate Division, and his estate was substituted as a petitioner.

      . Petitioners did not rely upon equitable estoppel or part performance below.

      . To the extent the Restatement (Second) of Contracts § 139 permits circumvention of the statute of frauds where mere “injustice” not rising to the level of unconscionability would result, we decline to adopt it. We also address on this appeal the doctrine of promissory estoppel only insofar as it is used to estop reliance on the statute of frauds. We do not address the use of promissory estoppel in other contexts in which the statute of frauds is not involved (see generally Restatement [Second] of Contracts § 90; Swerdloff, 74 AD2d at 261-263; Merex A.G. v Fairchild Weston Sys., Inc., 29 F3d 821, 824-825 [2d Cir 1994], cert denied 513 US 1084 [1995]).