O'Brien v. West

• Decision Date: 20 December 1993
• Citation: 199 A.D.2d 369,605 N.Y.S.2d 366
• Parties: Lawrence O'BRIEN, Appellant, v. Carol M. WEST, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 366

605 N.Y.S.2d 366

199 A.D.2d 369

Lawrence O'BRIEN, Appellant, v. Carol M. WEST, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Dec. 20, 1993.

Gerard Zwim, New York City (Martin Nardi Gamliel, of counsel), for appellant.

Before THOMPSON, J.P., and BALLETTA, MILLER and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for specific performance of a contract for the sale of real property and a business, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Underwood, J.), entered May 16, 1991, which, upon denying the plaintiff's motion for summary judgment and granting the defendants' cross motion for summary judgment, dismissed the complaint and severed the defendants' counterclaims.

ORDERED that the order and judgment is affirmed, without costs or disbursements.

The law is settled that a binder agreement such as the memorandum at bar may satisfy the Statute of Frauds and thus be subject to specific performance where it identifies the parties, describes the subject property, recites all essential terms of a complete agreement, and is signed by the party to be charged (see, Engle v. Lipcross, Inc., 153 A.D.2d 603, 605, 544 N.Y.S.2d 638; Ramos v. Lido Home Sales Corp., 148 A.D.2d 598, 539 N.Y.S.2d 63; Tamir v. Greenberg, 119 A.D.2d 665, 501 N.Y.S.2d 103). Moreover, the essential terms which must be set forth for the binder to be enforceable include those terms customarily encountered in transactions of this nature ( see, Taibi v. American Banknote Co., 135 A.D.2d 810, 811, 522 N.Y.S.2d 914). One can only find a true meeting of the minds where a binder constitutes a complete agreement reciting all essential terms and satisfying the other previously mentioned conditions ( see, La Barca v. Altenkirch, 193 A.D.2d 586, 597 N.Y.S.2d 158; Monaco v. Nelson, 121 A.D.2d 371, 502 N.Y.S.2d 947).

To satisfy the Statute of Frauds, the writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone (see, Aceste v. Wiebusch, 74 A.D.2d 810, 425 N.Y.S.2d 369). If the contract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreed to, the remedy of specific performance is not available (see, Wright v. Weeks, 25 N.Y. 153). Parol evidence may not be received to supplement an insufficient writing so as to bring it into compliance with the requirements of the Statute of Frauds (see, Mandel v. Guardian Holding Co., 200 App.Div. 767, 193 N.Y.S. 777, aff'd 234 N.Y. 564, 138 N.E. 448). Notably, only reasonable certainty, not absolute certainty, as to the terms of the agreement is required (see, Marder's Nurseries v. Hopping, 171 A.D.2d 63, 573 N.Y.S.2d 990). Nevertheless, application of the foregoing principles to the facts of the instant case leads to the conclusion that the agreement is deficient in several respects.

Although the memorandum recited the purchase price agreed to by the parties, was signed by the parties, and set forth basic payment terms, it omitted several other essential terms. The description of the property was insufficient, especially as to "all adjacent and remote parcels" (see, Tetz v. Dexter, 133 A.D.2d 79, 518 N.Y.S.2d 426; Barber v. Stewart, 275 App.Div. 429, 90 N.Y.S.2d 607; cf., Maccioni v. Guzman, 145 A.D.2d 415, 535 N.Y.S.2d 96). Furthermore, the memorandum agreement was subject to further negotiations, as evidenced by the buyer's obligation to pay $9,900 being subject to his "acceptance of contract". Thus, the writing itself indicates that it was not intended to be a complete contract (see, Tamir v. Greenberg, 119 A.D.2d 665, 501 N.Y.S.2d 103, supra ). Moreover, to the extent that this provision of the agreement is ambiguous, it should be construed against its drafter--the plaintiff buyer (see, Jacobson v. Sassower, 66 N.Y.2d 991, 499 N.Y.S.2d 381, 489 N.E.2d 1283; Rieter v. Tavella, 157 A.D.2d 894, 549 N.Y.S.2d 888).

Significantly, this $450,000 commercial transaction was to be paid for, in part, by a promissory note for $300,000, payable in monthly installments of $2,700 over 10 years. However, the rate of interest to be paid on the note had not been agreed to and the memorandum made no reference to the mortgage that was to secure the debt. Where a mortgage is intended to be part of the contract and...