| Rivera v Alaimo |
| 2008 NY Slip Op 06555 [54 AD3d 325] |
| August 5, 2008 |
| Appellate Division, Second Department |
| Luis E. Rivera, Sr., Respondent, v Vincent Alaimo et al.,Appellants. |
—[*1] David B. Gilbert, Middletown, N.Y., for respondent.
In an action, inter alia, to recover a deposit made in contemplation of a purported lease, thedefendants appeal from (1) an order of the Supreme Court, Orange County (Owen, J.), datedMarch 14, 2007, which, among other things, granted that branch of the plaintiff's motion whichwas for summary judgment on the cause of action to recover a deposit made in contemplation ofa purported lease, and (2) a judgment of the same court dated July 3, 2007, which, upon theorder, is in favor of the plaintiff and against them in the principal sum of $12,000, and dismissedtheir answer and counterclaim.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
A handwritten agreement signed by the plaintiff and the defendant Vincent Alaimo [*2]provided that certain payments and other material terms of apurported lease and contract to sell fixtures were dependent upon the preparation and executionof a "final lease agreement." Moreover, the handwritten agreement did not state who the landlordand tenant were, and failed to describe the premises to be leased. Thus, the handwrittenagreement constituted a mere agreement to agree, which is unenforceable (see Joseph Martin,Jr., Delicatessen v Schumacher, 52 NY2d 105, 109 [1981]; 410 BPR Corp. v Chmelecki Asset Mgt.,Inc., 51 AD3d 715 [2008]; Breuer v Feder, 27 AD3d 509 [2006]; Frankel v Ford Leasing Dev. Co., 7AD3d 757 [2004]; Venture Mfg.[Singapore] v Matco Group, 6 AD3d 850 [2004]; Lupoli v West Hills NeighborhoodAssoc., 140 AD2d 312, 313 [1988]; cf. Harlow Apparel v Pik Intl., 106 AD2d 345[1984]).
It is undisputed that no lease or contract was ever signed by the parties. Thus, the partiesnever reached an agreement for the lease of the subject premises or contracted for the sale offixtures (see General Obligations Law § 5-703). Accordingly, the plaintiff, bytendering the unsigned documents and the handwritten agreement on his motion, established hisentitlement to judgment as a matter of law on the cause of action to recover a deposit made incontemplation of a purported lease (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). In opposition, the defendants failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557,562 [1980]; 410 BPR Corp. vChmelecki Asset Mgt. Inc., 51 AD3d 715 [2008]). Thus, the Supreme Court correctlygranted summary judgment to the plaintiff on that cause of action.
The parties' remaining contentions are without merit. Prudenti, P.J., Ritter, Florio andMcCarthy, JJ., concur.