| Stonehill Capital Mgt., LLC v Bank of the W. |
| 2015 NY Slip Op 02900 [127 AD3d 429] |
| April 7, 2015 |
| Appellate Division, First Department |
[*1]
| Stonehill Capital Management, LLC, et al.,Respondents, v Bank of the West, Appellant, et al.,Defendant. |
Katten Muchin Rosenman LLP, New York (David A. Crichlow of counsel), forappellant.
Law Offices of Martin Eisenberg, New York (Martin Eisenberg of counsel), forrespondents.
Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered June4, 2014, in favor of plaintiffs as against defendant bank, pursuant to an order, same courtand Justice, entered March 25, 2014, which granted plaintiffs' motion for summaryjudgment on its breach of contract cause of action and denied defendant bank's crossmotion for summary judgment dismissing the amended complaint, unanimously reversed,on the law, without costs, the motion denied, the cross motion granted, and the complaintdismissed as against defendant bank. The Clerk is directed to enter judgmentaccordingly. Appeal from the aforesaid order, unanimously dismissed, without costs, assubsumed in the appeal from the judgment.
Defendant auctioneer had apparent authority to acknowledge plaintiffs' winning bidon the loan at issue and to state on defendant bank's behalf that the sale of the loan wouldgo through subject to a final, executed agreement. Defendant bank was aware of theauctioneer's statements and the bank's counsel acted as if the statements were true (seeHallock v State of New York, 64 NY2d 224, 231-232 [1984]). However, the bankmade explicit statements that it was not to be bound absent an executed writing.Although it agreed to the use of a standard industry form to represent the prospectiveagreement, when it was discovered that the nature of the loan did not permit use of theform, the parties entered into negotiations regarding the necessary modifications to itslanguage. Before any writing was executed, defendant exercised its right under theoffering memorandum to withdraw the loan asset in question from the auction processand refused to go forward with the transaction.
For a court to enforce a purported contract, the proponent must establish, in the firstinstance, that the parties intended to be mutually bound by an agreement, together withall material terms of the agreement, factors that implicate the doctrine of definiteness(see Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475,482 [1989], cert denied 498 US 816 [1990]). That the bank may have agreed tomost of the material terms and remained silent when presented with changes proposed byplaintiffs does not fulfill the condition requiring a written agreement and tender of adeposit equal to 10% of the purchase price. These conditions comprising a validacceptance under the agreement were not fulfilled. Thus, even if all of the material termswere agreed upon, as plaintiffs contend, plaintiffs have not established that acceptancewas "clear, unambiguous and unequivocal" so as to render such terms enforceable(King v King, 208 AD2d 1143, 1144 [3d Dept 1994]).
We have considered the bank's remaining contentions for affirmative relief and findthem unavailing. Concur—Tom, J.P., Renwick, DeGrasse, Manzanet-Daniels andClark, JJ. [Prior Case History: 2014 NY Slip Op 30751(U).]