| Wilson v Ledger |
| 2012 NY Slip Op 05696 [97 AD3d 1028] |
| July 19, 2012 |
| Appellate Division, Third Department |
| Frederick B. Wilson, Appellant, v R. Patrick Ledger et al.,Respondents. |
—[*1] Yuri Gaspar, Lake Placid, for respondents.
Peters, P.J. Appeal from a judgment of the Supreme Court (Meyer, J.), entered June 13, 2011in Essex County, which, among other things, granted defendants' motion for summary judgmentdismissing the complaint.
Defendant R. Patrick Ledger entered into a contract with plaintiff for the purchase of anapproximately 26-acre parcel of real property located in the Village of Lake Placid, Essex Countyfor $450,000. The terms of the contract called for Ledger to pay $50,000 towards the purchaseprice at closing, with the balance to be paid pursuant to two separate notes and mortgages. Thefirst note and mortgage was in the principal amount of $150,000, bore interest at a rate of 6% perannum and provided for payment in two equal annual installments. The second note andmortgage was in the principal amount of $250,000 and provided that the debt would be paid by(1) Ledger's construction and conveyance of a 3,100 square foot single-family residence forplaintiff on an undesignated and undefined portion of the property pursuant to plans andspecifications to be thereafter agreed upon by the parties, with such property and residence to beconveyed to plaintiff within 48 months of the date of the mortgage, and (2) granting plaintiff theright to have possession of the first townhouse constructed by Ledger on the property no laterthan 30 months from the date of the mortgage and continuing until a certificate of occupancy isissued for the single family residence.[*2]
Ledger made both installment payments under the firstmortgage but, following several discussions, he and plaintiff could not agree on the location andsize of the lot nor the plans and specifications for the residence to be constructed.[FN*]After refusing several offers by Ledger to satisfy the note by payment of $250,000, plaintiff fileda notice of pendency on the property and commenced the instant action. By amended complaint,plaintiff sought to foreclose on the mortgage and recover lost rental income, as well as othercosts and fees. After issue was joined, defendants paid into court the full amount owed toplaintiff under the note and mortgage, and Supreme Court (Dawson, J.) granted their motion todismiss plaintiff's mortgage foreclosure claim pursuant to RPAPL 1341 (1). Subsequentdecisions and orders directed the payment out of court of the amount due plaintiff under the noteand mortgage and that the mortgage be discharged pursuant to RPAPL 1921. Plaintiff did notappeal any of these orders.
Following the completion of discovery, defendants moved for summary judgment dismissingthe remaining causes of action. Finding that the provisions of the note and mortgage regardingthe construction of the single family house constituted an unenforceable agreement to agree,Supreme Court (Meyer, J.) granted defendants' motion and dismissed the complaint. Plaintiffappeals, and we affirm.
" 'It is well settled that a contract must be definite in its material terms in order to beenforceable' " (Clifford R. Gray, Inc. vLeChase Constr. Servs., LLC, 31 AD3d 983, 985 [2006], quoting SpectrumResearch Corp. v Interscience, Inc., 242 AD2d 810, 811 [1997] [citations omitted]; seeCobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482 [1989], certdenied 498 US 816 [1990]). In other words, before a plaintiff may obtain redress for thebreach of an agreement, the promise made must be sufficiently certain so that the parties'intentions are ascertainable. Thus, an agreement to agree, in which material terms are left forfuture negotiation, is unenforceable (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. PostRd. Corp., 78 NY2d 88, 91 [1991]; Joseph Martin, Jr., Delicatessen v Schumacher,52 NY2d 105, 109 [1981]; Clifford R. Gray, Inc. v LeChase Constr. Servs., LLC, 31AD3d at 985).
Here, as Supreme Court correctly found, the plans and specifications for the single familyresidence to be constructed, as well as the size and location of the lot upon which such residencewould be built and conveyed to plaintiff, were essential terms to the note and mortgage inasmuchas they represented the manner of repayment of the $250,000 debt. The parties, however, leftthese material terms for future negotiation and agreement and failed to set forth in the documentsany objective method for supplying those missing terms, resulting in only an unenforceableagreement to agree (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d at 111;Follender v Prior, 63 AD3d1458, 1459 [2009]; UnilandPartnership of Del. L.P. v Blue [*3]Cross of W. N.Y. Inc., 27AD3d 1131, 1132 [2006], lv denied 7 NY3d 713 [2006]; see also Marder'sNurseries v Hopping, 171 AD2d 63, 69 [1991], lv denied 79 NY2d 757 [1992]).Thus, as there was no meeting of the minds regarding the material terms of the house to beconstructed, plaintiff's claims for consequential damages and fees stemming from the allegedbreach were properly dismissed (seeWild v Hayes, 68 AD3d 1412, 1414 [2009]; Clifford R. Gray, Inc. v LeChaseConstr. Servs., LLC, 31 AD3d at 985-986).
The parties' remaining contentions have either been rendered academic in light of ourdetermination, are not properly before us or have been reviewed and found to be lacking in merit.
Spain, Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed,with costs.
Footnote *: In May 2004, Ledger conveyedthe property to defendant Lake Placid Builders' Group, LLC in exchange for a 50% ownershipinterest in the corporation. Thereafter, defendant Karsten Moller provided Lake Placid Builders'Group, LLC with a commercial loan in the amount of $500,000, which was secured by amortgage on the property.