| Brighton Inv., Ltd. v Har-Zvi |
| 2011 NY Slip Op 07555 [88 AD3d 1220] |
| October 27, 2011 |
| Appellate Division, Third Department |
| Brighton Investment, Ltd., Appellant, v Ronen Har-Zvi,Respondent. |
—[*1] LeCours, Chertok & Yates, L.L.P., Saratoga Springs (Alan R. LeCours of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered May 18, 2010 inSaratoga County, which, among other things, denied plaintiff's motion for summary judgment.
In 2004, plaintiff, a foreign corporation, and defendant, a securities and derivatives traderresiding in the City of Saratoga Springs, Saratoga County, reached an agreement by whichdefendant invested plaintiff's funds. The agreement was memorialized in a memorandum ofunderstanding (hereinafter the 2004 MOU) signed by defendant and Eldad Levy, plaintiff'srepresentative. In early 2005, plaintiff advised that it wished to withdraw the funds. In response,defendant proposed an alternate investment plan, by which defendant would guarantee the fullreturn of plaintiff's original investment, plus 50% of any growth, if plaintiff would continue theinvestment until June 2006. After an exchange of e-mails discussing details, Levy e-maileddefendant a new memorandum of understanding (hereinafter the 2005 MOU) setting forth theterms of the proposal. Defendant never provided plaintiff with a signed copy of this document,but in June 2005, he advised Levy by e-mail, "draft is signed, will officaly [sic] sign andfax it when have power to do so, BUT signed!, my word must still be worth a bit." In June 2006,Levy sought return of the initial investment from defendant, and defendant thereafter wired alesser sum. In subsequent e-mail correspondence, Levy insisted that the full sum initially investedwas due, while defendant responded, in effect, that he could not afford to pay that amount, buthad instead sent an amount reflecting a high point in the investment's recent performance.[*2]
In January 2008, plaintiff commenced this action allegingbreach of contract, conversion, unjust enrichment and breach of fiduciary duty. Defendantanswered with counterclaims, and plaintiff moved to dismiss the counterclaims. After SupremeCourt granted plaintiff's motion in part, plaintiff moved for summary judgment, and defendantcross-moved for summary judgment dismissing the complaint. Supreme Court denied bothmotions.
Plaintiff appeals, contending that Supreme Court erred in denying its motion for summaryjudgment on its breach of contract claim. This claim requires proof that a contract was formed,plaintiff performed its obligations, defendant failed to do so, and plaintiff was damaged as aresult (see Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [2009]). The issue indispute is whether, after entering into the 2004 MOU, the parties formed a new contract. Plaintiffcontends that despite its inability to produce an executed copy of the 2005 MOU, the existence ofan enforceable contract is established by the e-mail exchange between Levy and defendant and bythe parties' subsequent course of conduct. In this regard, plaintiff notes that in e-mails after June2005, Levy repeatedly mentioned his expectation that the full initial investment would be paid inJune 2006, and defendant never denied that he had so agreed, even when explaining his reasonsfor paying the lesser amount. Defendant asserted in opposition that he never signed the 2005MOU or intended to agree to its terms, and that his June 2005 statement that he had signed adraft pertained to a different business venture in which he, Levy, and two other individuals wereinvolved. Supreme Court determined that defendant's June 2005 e-mail was too equivocal toconstitute an unconditional acceptance of the 2005 MOU, and that there were triable issues offact as to whether defendant signed the document.
Whether a contract has been formed does not depend on either party's subjective intent;instead, the determination must be based on "the objective manifestations of the intent of theparties as gathered by their expressed words and deeds" (Brown Bros. Elec. Contrs. v BeamConstr. Corp., 41 NY2d 397, 399 [1977]; see Matter of Rose BB., 300 AD2d 868,869-870 [2002]; Keis Distrib. v Northern Distrib. Co., 226 AD2d 967, 968-969 [1996]).An unsigned contract may be enforceable when objective evidence establishes that the partiesintended to be bound (see Flores vLower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369 [2005]), and an exchange of e-mailsmay constitute an enforceable contract, even if a party subsequently fails to sign implementingdocuments, when the communications are "sufficiently clear and concrete" to establish such anintent (Williamson v Delsener, 59AD3d 291, 291 [2009]; seeNewmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 AD3d 476, 477-478[2011]; see also Stevens v PublicisS.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008]). Thus,resolution of this dispute does not necessarily depend on whether defendant actually signed someversion of the 2005 MOU or on any other "single act, phrase or other expression," but on whetherthe parties' words and deeds establish their intent to enter into a binding agreement "given theattendant circumstances, the situation of the parties, and the objectives they were striving toattain" (Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d at 400).
Plaintiff's submissions did not establish a prima facie case sufficient to support summaryjudgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Repeti v McDonald's Corp., 49 AD3d1089, 1090 [2008]). When a written instrument is free from ambiguity, a court may decidethe question of intent as a matter of law, but where, as here, the written language is ambiguousand cannot be interpreted without resort to extrinsic evidence, the parties' intent must be decidedby the factfinder (see Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d at 400;Keis Distrib. v Northern Distrib. Co., 226 AD2d at 968). In their e-mail communications,Levy and defendant discussed multiple business deals using a [*3]telegraphic style and irregular syntax that cannot readily beunderstood without explanatory extrinsic information. Levy's June 2005 e-mail advisingdefendant, "I have not received my agreement with you, not going to ask for it again," did notclearly reference the 2005 MOU, nor did defendant's responding message. Both of thesecommunications were embedded in discussions of other business transactions. Moreover, anambiguity as to whether the parties intended to be bound by the 2005 MOU before it wasformally signed (see Scheck v Francis, 26 NY2d 466, 469-470 [1970]; Granger v Schachenmayr, 49 AD3d1079, 1081 [2008]; Venture Mfg.[Singapore] v Matco Group, 6 AD3d 850, 851 [2004]) was created by defendant's initialproposal to Levy that they should sign a new memorandum of understanding if they agreed uponthe modification, Levy's inclusion of signature blanks in the 2005 MOU, and defendant's crypticJune 2005 communication that, in addition to signing a draft, he would officially sign and fax the2005 MOU when he "[had] power to do so." Given this lack of clarity in the parties' writtencommunications, their intent must be determined by assessing whether the totality of thecircumstances, including their course of conduct after June 2005, consistently indicated theirmutual belief that an agreement had been reached (see Brown Bros. Elec. Contrs. v BeamConstr. Corp., 41 NY2d at 399; Richmor Aviation, Inc. v Sportsflight Air, Inc., 82 AD3d 1423,1424-1425 [2011]; United States Fid. &Guar. Co. v Delmar Dev. Partners, LLC, 14 AD3d 836, 838 [2005]). This determinationdepends on assessments of credibility and inferences to be drawn from the conflicting evidence,and so must be made by the trier of fact (see Pozament Corp. v AES Westover, LLC, 27 AD3d 1000,1001-1002 [2006]; compare Ahlstrom Mach. v Associated Airfreight, 272 AD2d 739,741 [2000]).
However, we agree with plaintiff that it is entitled to summary judgment dismissing the realparty in interest defense. "A contracting party generally has a right to maintain an action in itsown name" (Airlines Reporting Corp. v Pro Travel, 239 AD2d 233, 234 [1997];see CPLR 1004). Both the 2004 MOU and the 2005 MOU identify plaintiff as thecontracting party, defendant dealt with Levy in relation to plaintiff's investment withoutquestioning his authority to act on plaintiff's behalf, and any recovery resulting from this actionwill be paid to plaintiff. Supreme Court thus properly found that this defense lacks merit (seeFairchild Hiller Corp. v McDonnell Douglas Corp., 28 NY2d 325, 330-331 [1971];James McKinney & Son v Lake Placid 1980 Olympic Games, 92 AD2d 991, 992-993[1983], mod 61 NY2d 836 [1984]) and, upon denying defendant's cross motion, couldhave searched the record to grant judgment to plaintiff on this issue (see CPLR 3212 [b];Siegel, NY Prac § 282, at 466-467 [4th ed]). This Court may also exercise that power (see Shields v Carbone, 78 AD3d1440, 1443 n 2 [2010]; Schultes vKane, 50 AD3d 1277, 1278 [2008]). We conclude that plaintiff is entitled to partialsummary judgment dismissing this affirmative defense.
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is modified, onthe law, without costs, by granting summary judgment to plaintiff dismissing defendant's realparty in interest affirmative defense, and, as so modified, affirmed.