dissents and votes to reverse the order and judgment appealed from and to deny the defendants’ motion, with the following memorandum: The motion to dismiss pursuant to CPLR 3211 presents a factual question which goes to the heart of the Statute of Frauds issue which Special Term and my colleagues believe to be dispositional. In my view, the dispute precludes dismissal of the complaint and therefore I dissent.
The subject of the action is a house in Bayside, Queens, which the defendants own and the plaintiff claims they agreed to sell to him. The plaintiff has brought an action for specific performance or for damages and the defendants have moved to dismiss, asserting the Statute of Frauds as a defense. The memorandum upon which the plaintiff relies, handwritten by the defendant Barbara Greenberg, and signed by her husband, the defendant David Greenberg, clearly sets forth the parties, the subject matter of the transaction and the price. Unless the memorandum fails to include an essential term the parties agreed upon, it is sufficient to satisfy the Statute of Frauds (see, Aceste v Wiebusch, 74 AD2d 810; Birnhak v Vaccaro, 47 *668AD2d 915). The fact that the memorandum also calls for the execution of a more formal contract does not render it insufficient (see, Tymon v Linoki, 16 NY2d 293; Read v Henzel, 67 AD2d 186, 189).
Here, however, the parties disagree as to whether there was an additional, essential term of the agreement. According to David Greenberg, he told the plaintiff that he had already accepted a binder from another party and that any agreement between the Greenbergs and the plaintiff would have to be subject to this prior binder. The plaintiff and a friend, who was also present, do not recall the transaction in the same way. As they remember it, after the document was drawn up, David Greenberg signed it and went into the kitchen to use the telephone. When he emerged he announced that he had discussed the matter with his lawyer who said "that the agreement was a solid contract and that it is more than sufficient and that there is no need for a lawyer”. Since the document makes no reference to the prior binder which the majority agrees would be an essential term of the contract, the statement that the contract is "solid” necessarily implies that the existence of the prior binder was not a part of the agreement. In any event, these conflicting attestations of what occurred and what was agreed upon make it apparent that there is a factual dispute and I see no basis for my colleagues’ assertion that "the record establishes that the parties had orally agreed that the cancellation of the prior binder was a 'must’, a condition precedent, to the formation of a binding contract”. As resolution of the Statute of Frauds question depends upon whether the disposition of the prior binder was indeed part of the agreement, the motion to dismiss could not properly have been granted without at least a hearing to determine this issue of fact (see, Rohrwasser v Al & Lou Constr. Co., 82 AD2d 1008). Moreover, given the fact that these issues have been raised in a CPLR 3211 motion, prior to the joinder of issue, reliance on the affidavit of the defendant David Greenberg to defeat the complaint is not appropriate (see, Rovello v Orofino Realty Co., 40 NY2d 633, 635-636).
The prior binder does not present, however, the only factual issue is this case. The document here, although handwritten by Barbara Greenberg, is not signed by her. On the facts alleged by the plaintiff there may be an estoppel issue (see, Farr v Newman, 18 AD2d 54, affd 14 NY2d 183) which cannot be resolved short of trial.