| Priceless Custom Homes, Inc. v O'Neill |
| 2013 NY Slip Op 01391 [104 AD3d 664] |
| March 6, 2013 |
| Appellate Division, Second Department |
| Priceless Custom Homes, Inc., Appellant, v MarthaO'Neill, Respondent. |
—[*1] McLaughlin & Stern, LLP, New York, N.Y. (Aimee E. Saginaw of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated May21, 2012, which denied its motion for summary judgment on the issue of whether acertain unsigned document constituted an enforceable agreement between the parties.
Ordered that the order is affirmed, with costs.
CPLR 3123 (a) provides, in relevant part, that "a party may serve upon any otherparty a written request for admission by the latter of the genuineness of any papers ordocuments . . . , or of the truth of any matters of fact set forth in the request,as to which the party requesting the admission reasonably believes there can be nosubstantial dispute at the trial and which are within the knowledge of such other party orcan be ascertained by him upon reasonable inquiry." "If the requested admission is notdenied or otherwise explained 'within twenty days after service thereof or within suchfurther time as the court may allow,' then the requested admission will be deemedadmitted" (Nacherlilla vProspect Park Alliance, Inc., 88 AD3d 770, 771 [2011], quoting CPLR 3123[a]). " 'The purpose of a notice to admit is only to eliminate from the issues in litigationmatters which will not be in dispute at trial' " (Nacherlilla v Prospect Park Alliance,Inc., 88 AD3d at 771-772, quoting DeSilva v Rosenberg, 236 AD2d 508,508 [1997]; see Rosenfeld vVorsanger, 5 AD3d 462, 462 [2004]). " 'It is not intended to cover ultimateconclusions, which can only be made after a full and complete trial' " (Nacherlilla vProspect Park Alliance, Inc., 88 AD3d at 772, quoting DeSilva v Rosenberg,236 AD2d at 508; see Rosenfeld v Vorsanger, 5 AD3d at 462). " 'A notice toadmit which goes to the heart of the matters at issue is improper' " (Nacherlilla vProspect Park Alliance, Inc., 88 AD3d at 772, quoting DeSilva v Rosenberg,236 AD2d at 508; see Tolchin vGlaser, 47 AD3d 922, 923 [2008]; Rosenfeld v Vorsanger, 5 AD3d at462; Glasser v City of New York, 265 AD2d 526, 526 [1999]; see also Rinerv Texaco, Inc., 222 AD2d 571, 572 [1995]).
Here, contrary to the plaintiff's contention, the matter concerning which it sought anadmission, whether a particular unsigned document constituted an enforceable agreementbetween the parties, will be in dispute at trial (see generally CPLR 3123 [a];Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d at 771-772; Rosenfeld vVorsanger, 5 AD3d at 462; DeSilva v Rosenberg, [*2]236 AD2d at 508). Moreover, as the Supreme Courtproperly determined, the admission sought will be at the heart of the controversy in thiscase (see Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d at 772; Tolchinv Glaser, 47 AD3d at 923; Glasser v City of New York, 265 AD2d at 526;see also Riner v Texaco, Inc., 222 AD2d at 572). Accordingly, the SupremeCourt properly determined that the plaintiff was not entitled to summary judgmentpursuant to CPLR 3123 (a).
The Supreme Court also properly determined that the plaintiff was not entitled tosummary judgment on the theory that the parties demonstrated their intent to be bound bythe unsigned written agreement. "[A] contract may be valid even if it is not signed by theparty to be charged, provided its subject matter does not implicate a statute—suchas the statute of frauds (General Obligations Law § 5-701)—that imposessuch a requirement" (Flores vLower E. Side Serv. Ctr., Inc., 4 NY3d 363, 368 [2005]). "[A]n unsignedcontract may be enforceable, provided there is objective evidence establishing that theparties intended to be bound" (id. at 369; see Geha v 55 Orchard St., LLC, 29 AD3d 735, 736[2006]). " 'In determining whether the parties entered into a contractual agreement andwhat were its terms, it is necessary to look . . . to the objectivemanifestations of the intent of the parties as gathered by their expressed words and deeds'" (Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d at 368, quoting BrownBros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 399 [1977]; see Minelli Constr. Co., Inc. vVolmar Constr., Inc., 82 AD3d 720, 721 [2011]). Here, the plaintiff failed toestablish, prima facie, that the parties' words and deeds demonstrated their intent to bebound by the terms of the unsigned written agreement (cf. Geha v 55 Orchard St.,LLC, 29 AD3d at 736).
The Supreme Court therefore properly denied the plaintiff's motion for summaryjudgment on the issue of whether the unsigned document constituted an enforceableagreement between the parties. Dillon, J.P., Dickerson, Leventhal and Hinds-Radix, JJ.,concur.