| Ouimet v Fitzsimmons |
| 2009 NY Slip Op 09584 [68 AD3d 1507] |
| December 24, 2009 |
| Appellate Division, Third Department |
| Barry B. Ouimet et al., Respondents, v Rita A.Fitzsimmons, Appellant. |
—[*1] Law Office of John Piasecki, Malone (John A. Piasecki of counsel), forrespondents.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Demarest, J.), entered March 2,2009 in Franklin County, upon a decision of the court in favor of plaintiffs.
Defendant, age 85, and her husband owned a 138.5-acre family farm in the Town of Malone,Franklin County. After defendant's husband died in June 2006, defendant met with plaintiffs and,after some negotiations, agreed to sell the farm to them for $150,000. In the weeks that followed,plaintiffs sought to obtain financing for the purchase of the property, but were only able to obtaina prequalification commitment from a mortgage company for a loan in the amount of $120,000.A purchase and sale agreement was subsequently prepared by plaintiffs' attorney and signed bythe parties on September 11, 2006. According to plaintiffs, a copy of the contract was sent todefendant's counsel, but counsel denied ever seeing the document.
The following month, defendant's nephew advised plaintiffs that defendant was no longerwilling to sell the farm at the agreed-upon price. Plaintiffs immediately commenced this actionalleging a breach of their contract and sought specific performance of the agreement as well asmoney damages they claim to have incurred as the result of defendant's breach. A nonjury trialwas held and, after dismissing plaintiffs' claim for money damages, Supreme Court grantedplaintiffs' cause of action for specific performance of the contract. Defendant now appealsarguing, among other things, that the agreement was not enforceable because it lacked all [*2]of the material terms needed to make it a valid contract. She alsoclaims that plaintiffs were not entitled to specific performance because they were not ready andable to perform their obligations under the contract and because they had breached a fiduciaryduty owed to her during the negotiations that led to the signing of this agreement.
While the contract, as written, was an enforceable agreement and plaintiffs did not, asdefendant claims, have a fiduciary relationship with her, plaintiffs, in our view, have failed todemonstrate that they are entitled to specific performance of this contract. "Generally, whenthere is an objective manifestation of intent to enter into a contract, a purchase offer agreementwill 'be subject to specific performance [if] it identifies the parties, describes the subjectproperty, recites all essential terms of a complete agreement, and is signed by the party to becharged' " (Garnot v LaDue, 45 AD3d 1080, 1082 [2007], quoting O'Brien vWest, 199 AD2d 369, 370 [1993]). Moreover, to obtain specific performance, "plaintiffswere required to demonstrate that they substantially performed their contractual obligations andwere ready, willing and able to fulfill their remaining obligations, that defendant was able butunwilling to convey the property and that there is no adequate remedy at law" (Alba vKaufmann, 27 AD3d 816, 818 [2006]; see Huntington Min. Holdings v CottontailPlaza, 60 NY2d 997, 998 [1983]; Zeitoune v Cohen, 66 AD3d 889, 891-892 [2009]).The only credible evidence that plaintiffs presented that they had the financial resources neededto buy this property was the prequalification letter they received from a mortgage company.However, the letter, by its terms, did not guarantee that funds in the amount of the purchase pricewould be advanced or were then available to plaintiffs to pay for the property. Instead, the letterstated that plaintiffs were prequalified for a $120,000 loan and that "[i]t is understood that underno circumstances should this letter be interpreted as a commitment to lend or that an applicationhas been taken. In order to receive a mortgage commitment, a formal application needs to besubmitted and reviewed by Countrywide Home Loans, as well as receipt of supportingdocumentation and an acceptable appraisal of the property."
Moreover, while plaintiffs contend that the necessary financial assistance was available fromfamily members, no evidence was presented that they ever requested such financial assistance orthat any family member ever made a binding financial commitment to them to assist them inmeeting their obligations under this contract. As such, we conclude that plaintiffs failed to provethat they were able to meet these obligations (compare Garnot v LaDue, 45 AD3d at1082-1083) and, therefore, Supreme Court erred by granting them specific performance of thiscontract (see Provost v Off Campus Apts. Co., II, 211 AD2d 850, 851 [1995]).
As a result of our decision, we need not reach defendant's remaining arguments.
Peters, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isreversed, on the law, with costs, and complaint dismissed.