| Follender v Prior |
| 2009 NY Slip Op 05221 [63 AD3d 1458] |
| June 25, 2009 |
| Appellate Division, Third Department |
| Jonathan S. Follender, Appellant, v Vincent W. Prior, Individuallyand as President and/or Officer of One Church Street Station Corporation, et al.,Respondents. |
—[*1] Andrew P. Zweben, Kingston, for respondents.
Rose, J. Appeals (1) from an order of the Supreme Court (Garry, J.), entered December 14,2007 in Delaware County, which, among other things, granted defendants' motion for summaryjudgment dismissing the amended complaint, and (2) from an order of said court, entered July22, 2008, which, upon reargument, adhered to its prior order.
Plaintiff commenced this action for specific performance alleging that defendants VincentW. Prior, Nancy Prior and One Church Street Station Corporation breached a letter agreementgranting him an option to purchase the real property where he and the Priors had law offices. Theproperty is owned by One Church Street which, in turn, is owned by the Priors, but only thePriors signed the letter agreement. Defendants moved for dismissal of the amended complaintpursuant to CPLR 3212, asserting that the purchase option is not enforceable because, amongother things, several material terms were left for further negotiation. Supreme Court granteddefendants' motion and awarded them a money judgment on their counterclaim for arrears inrent. Thereafter, the court effectively granted reargument by thoroughly reviewing the merits ofplaintiff's contentions, but adhered to its original determination. Plaintiff appeals.
We affirm because the omission of several material terms demonstrates that there was [*2]no final meeting of the parties' minds as to the purchase option. "Tocreate a binding contract, there must be a manifestation of mutual assent sufficiently definite toassure that the parties are truly in agreement with respect to all material terms" (Matter ofExpress Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589 [1999][citation omitted]). The letter agreement comprises six paragraphs which list four discrete rightsand obligations of plaintiff regarding the rental of office space, an option to purchase, a right offirst refusal on a parking lot and the payment of $25,000 to Vincent Prior for his share of certainlegal fees. The parties' understanding that these terms were subject to further agreement and notinterrelated is reflected in the final paragraph which states that the parties would later sign "amore formal document on each of the above matters." In addition, the letter agreement fails tostate the consideration for the purchase option, the identity of the owner of theproperty—even though it was known to the parties—or the term of defendants' leaseupon exercise of the option. The letter agreement's use of the future tense, its final paragraph,and the inconsistencies between it and subsequent drafts further show that it was merely anagreement to agree (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp.,78 NY2d 88, 90-92 [1991]; Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d105, 109 [1981]; Clifford R. Gray, Inc.v LeChase Constr. Servs., LLC, 31 AD3d 983, 985 [2006]; Venture Mfg. [Singapore] v MatcoGroup, 6 AD3d 850, 851 [2004]).
We also are unpersuaded by plaintiff's alternate argument that, if there were no enforceablepurchase option, then defendants would be unjustly enriched by his payment of $25,000. Thatpayment was made pursuant to the letter agreement's unrelated provision regarding VincentPrior's claim to a share of certain legal fees. Since plaintiff failed to raise a question of fact as tohis independent obligation to share fees with Vincent Prior, there is no support for his claim thatretention of the payment would be unjust.
Peters, J.P., Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the orders are affirmed,without costs.