| Regan v Real Source Charities, Inc. |
| 2007 NY Slip Op 09174 [45 AD3d 1156] |
| November 21, 2007 |
| Appellate Division, Third Department |
| Daniel J. Regan, Respondent, v Real Source Charities, Inc.,Appellant. |
—[*1] Cappello, Linden & Ladouceur, Potsdam (Michelle H. Ladouceur of counsel), forrespondent.
Mercure, J.P. Appeal from an order and judgment of the Supreme Court (Demarest, J.),entered January 22, 2007 in St. Lawrence County, which, among other things, granted summaryjudgment in favor of plaintiff.
This action arises out of a 2005 auction of two parcels of real property owned by defendantand situated across from one another on Route 37 in St. Lawrence County. The parcels were firstoffered for bidding separately and then together, and were to be sold pursuant to the method thatgarnered the highest total bid. Plaintiff owns property adjacent to one parcel (hereinafter parcelA) and John Sherman owns property adjacent to the other parcel (hereinafter parcel B). Prior tothe auction, plaintiff and Sherman informally agreed that if either of them was not the highbidder on the parcel adjacent to his property, they would bid together for the combined parcels.
Although Sherman was the high bidder for parcel B, plaintiff did not win the bid for parcelA. In accordance with their agreement, plaintiff then placed the high bid of $220,000 on thecombined parcels with the understanding that Sherman would contribute the amount that he bidon parcel B toward the sale price. Plaintiff also signed a "bid acknowledgment form" agreeing topurchase the property subject to the conditions set forth in a separate "Purchase & Saleagreement." Thereafter, plaintiff and Sherman requested that the parcels be conveyed separatelyto each of them in order to save plaintiff the costs associated with a second [*2]conveyance of parcel B to Sherman. The auctioneer ceded to thisrequest and separate contracts of sale were created for each parcel. Sherman subsequently refusedto complete the purchase of parcel B when defendant, as a charitable organization, was unable totimely obtain the necessary judicial approval of the sale.[FN*]
Plaintiff then commenced this action seeking specific performance of the contract for sale ofparcel A alone at a price of $154,000. Defendant counterclaimed, seeking to dismiss plaintiff'scomplaint and to compel plaintiff to purchase the combined property for $220,000. SupremeCourt denied defendant's subsequent motion for summary judgment and granted summaryjudgment in favor of plaintiff. Defendant appeals and we now affirm.
Defendant asserts that plaintiff's high bid, coupled with his signing of the bidacknowledgment form, constituted a binding contract for the sale of the combined property. Weagree with plaintiff, however, that the bid acknowledgment form did not satisfy the statute offrauds. Pursuant to General Obligations Law § 5-703 (2), "[a] contract . . . forthe sale[ ] of any real property, or an interest therein, is void unless the contract or some note ormemorandum thereof, expressing the consideration, is in writing, subscribed by the party to becharged." It is well settled that a writing will not satisfy the statute of frauds unless it "'designate[s] all parties, identif[ies] and describe[s] the subject matter and state[s] all of theessential terms of a complete agreement' " (Pfeil v Cappiello, 29 AD3d 1187, 1188 [2006], quoting Wacksv King, 260 AD2d 985, 986 [1999] [citation and internal quotation marks omitted]).Particularly relevant here, the writing must " 'describe the property involved with suchdefiniteness and exactness as will permit it to be identified with reasonable certainty' "(Conway v Maher, 185 AD2d 570, 572 [1992], quoting Barber v Stewart, 275App Div 429, 430 [1949]; see Pfeil v Cappiello, 29 AD3d at 1188).
In that regard, we note that the bid acknowledgment form upon which defendant seeks to relycontains no description or reference to the property, designation of defendant as a party, orindication of the nature of the interest conveyed. Instead, the form merely sets forth plaintiff'sname and address, and the price and deposit paid. While the form does refer to a separatepurchase and sale agreement, the separate contract that defendant signed with plaintiffmemorializes an agreement for the sale of parcel A alone; defendant entered into a separatecontract with Sherman for the sale of parcel B (see Sherman v Real Source Charities, Inc., 41 AD3d 946 [2007]).Accordingly, inasmuch as the bid acknowledgment form is insufficient to satisfy the statute offrauds, it did not constitute a valid obligation and, thus, Supreme Court properly denieddefendant's motion for summary judgment (see Pfeil v Cappiello, 29 AD3d at 1188;Bardusch v Lynch, 192 AD2d 1088, 1089 [1993]; Conway v Maher, 185 AD2d at572; cf. Wacks v King, 260 AD2d at 987). Furthermore, in the absence of any indicationthat the purchase and sale agreement subsequently signed by the parties is not valid, the courtcorrectly determined that plaintiff is entitled to summary judgment.[*3]
Defendant's remaining arguments are either renderedacademic by our determination or, upon consideration, have been found to be lacking in merit.
Peters, Spain, Carpinello and Kane, JJ., concur. Ordered that the order and judgment isaffirmed, without costs.
Footnote *: This Court recently determinedthat Sherman was entitled to summary judgment in his breach of contract action seeking return ofhis deposit along with costs and legal fees (Sherman v Real Source Charities, Inc., 41 AD3d 946 [2007]).