| Matter of Licata |
| 2010 NY Slip Op 06800 [76 AD3d 1076] |
| September 28, 2010 |
| Appellate Division, Second Department |
| In the Matter of Angelo Licata, Deceased. Annette Chessare,Appellant; Cecilia Licata et al., Respondents. |
—[*1] Sweeney & O'Keefe, Hauppauge, N.Y. (William H. Sweeney, Jr., of counsel), forrespondents.
In a probate proceeding in which an action for specific performance of a contract for the saleof real property was transferred from the Supreme Court, Suffolk County, to the Surrogate'sCourt, Suffolk County, Annette Chessare appeals (1) from an order of the Surrogate's Court,Suffolk County (Weber, S.), dated February 5, 2009, which denied her motion for summaryjudgment on the complaint in the action for specific performance, and (2), as limited by her brief,from so much of an order of the same court dated September 25, 2009, as, upon reargument,adhered to the original determination in the order dated February 5, 2009.
Ordered that the appeal from the order dated February 5, 2009, is dismissed, as that orderwas superseded by the order dated September 25, 2009, made upon reargument; and it is further,
Ordered that the order dated September 25, 2009, is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the respondents.
The Surrogate's Court properly denied the plaintiff's motion for summary judgment on thecomplaint, which sought to compel specific performance of a contract for the sale of certain realproperty to the plaintiff. To be enforceable, a contract for the sale of real property must beevidenced by a writing sufficient to satisfy the statute of frauds (see General ObligationsLaw § 5-703 [2]; Behrends vWhite Acre Acquisitions, LLC, 54 AD3d 700, 701 [2008]). To satisfy the statute offrauds, a memorandum evidencing a contract and subscribed by the party to be charged mustdesignate the parties, identify and describe the subject matter, and state all of the essential termsof a complete agreement (see Nesbitt vPenalver, 40 AD3d 596, 597 [2007]; Walentas v 35-45 Front St. Co., 20 AD3d 473, 474 [2005]). "'[The] writing must set forth the entire contract with reasonable certainty so that the substancethereof appears from the writing alone[*2]. . . If thecontract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreedto, the remedy of specific performance is not available' " (Checkla v Stone MeadowHomes, 280 AD2d 510, 510-511 [2001], quoting O'Brien v West, 199 AD2d 369,370 [1993]). Only reasonable certainty, not absolute certainty, as to the terms of the agreement isrequired (see O'Brien v West, 199 AD2d at 370). However, where a contract's materialterms are not reasonably definite, the contract is unenforceable (see Joseph Martin, Jr.,Delicatessen v Schumacher, 52 NY2d 105, 109 [1981]; Behrends v White AcreAcquisitions, LLC, 54 AD3d at 701).
Here, the plaintiff failed to make a prima facie showing of entitlement to judgment as amatter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).In a transaction for the sale of real property, "[t]he general rule is that 'the terms . . .of a mortgage subject to which a purchaser is to take title to real property are essential andmaterial elements of the contract' " (Marder's Nurseries v Hopping, 171 AD2d 63, 74[1991], quoting Read v Henzel, 67 AD2d 186, 189 [1979]). The evidence submitted bythe plaintiff did not establish the absence of a triable issue of fact regarding whether certain termsof the mortgage subject to which she was to take title to the property pursuant to the contract hadbeen agreed to with reasonable certainty or, alternatively, had been left for future negotiations(see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91[1991]; Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d at 109). "[W]here it isclear from the language of an agreement that the parties intended to be bound and there exists anobjective method for supplying a missing term, the court should endeavor to hold the parties totheir bargain" (Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2dat 91; see Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 483[1989], cert denied 498 US 816 [1990]). Here, however, the plaintiff failed to establishan absence of any triable issue of fact regarding whether the contract provided a methodology fordetermining the mortgage terms at issue, or invited recourse to an objective extrinsic event,condition, or standard on which those terms were made to depend (see Matter of 166Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d at 91-92; Joseph Martin, Jr.,Delicatessen v Schumacher, 52 NY2d at 110; see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
Based on the foregoing, the Surrogate's Court properly denied the plaintiff's motion forsummary judgment. In light of this determination, we need not examine the sufficiency of thedefendant's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d at 324; Dixon v Malouf, 70 AD3d 763,764 [2010]).
In light of the foregoing, we need not reach the plaintiff's remaining contentions. Covello,J.P., Santucci, Balkin and Austin, JJ., concur.