| Chan v Shew Foo Chin |
| 2009 NY Slip Op 03771 [62 AD3d 471] |
| May 12, 2009 |
| Appellate Division, First Department |
| Miriam Chan et al., Appellants, v Shew Foo Chin et al.,Respondents. |
—[*1] Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), forrespondents.
Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered October 2, 2008,after a nonjury trial, awarding plaintiffs the principal sum of $450,000, with interest from August1, 2002, which, to the extent appealed from, dismissed plaintiffs' cause of action for specificperformance, unanimously affirmed, with costs.
While it is true that an agreement sufficient to satisfy the statute of frauds may be piecedtogether from separate writings so long as they are "connected with one another either expresslyor by the internal evidence of subject matter and occasion" (see Marks v Cowdin, 226NY 138, 145 [1919]; DeRosis v Kaufman, 219 AD2d 376, 379 [1996]), the documentsrelied on by plaintiffs herein are not sufficient in that they fail to establish an essential term ofthe agreement, namely the purchase price. The record shows that in fact there was never ameeting of the minds on this term; indeed, negotiations continued even after a closing wasconcluded unsuccessfully (see Ross vWu, 27 AD3d 237 [2006], lv denied 7 NY3d 713 [2006]).
The court properly rejected plaintiffs' claim that the matter was removed from therequirements of the statute of frauds by their part performance, since their acts were notunequivocally referable to an agreement to sell the property at a certain price, " 'but rather can beexplained as preliminary steps which contemplate the future formulation of an agreement' "(RAJ Acquisition Corp. v Atamanuk, 272 AD2d 164, 164-165 [2000], quotingFrancesconi v Nutter, 125 AD2d 363, 364 [1986]). Similarly, defendants' admissions thatthey agreed to sell the property and eventually agreed on a price are insufficient, inasmuch as theadmission did not [*2]encompass a mutually agreed upon,specific price (see Tallini v Business Air, 148 AD2d 828, 829-830 [1989]; cf. Cole v Macklowe, 40 AD3d396 [2007]). Concur—Gonzalez, P.J., Catterson, Richter and Abdus-Salaam, JJ.[See 20 Misc 3d 1142(A), 2008 NY Slip Op 51830(U).]