Mocca Lounge, Inc. v. Misak
| Decision Date | 23 May 1983 |
| Citation | 94 A.D.2d 761,462 N.Y.S.2d 704 |
| Parties | MOCCA LOUNGE, INC., Appellant, v. John MISAK et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Gutman & Gutman, Mineola (Lawrence C. Gutman, Mineola, of counsel), for appellant.
D'Amato, Forchelli & Capetola, Mineola, for respondents.
Before MANGANO, J.P., and GIBBONS, BRACKEN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for, inter alia, defendants' breach of a contract to purchase a tavern and bar business, plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County, entered June 25, 1982, as, at the close of plaintiff's case, dismissed the first cause of action on the ground that the contract relied on by plaintiff is unenforceable for uncertainty and indefiniteness.
Judgment affirmed insofar as appealed from, with costs.
On January 8, 1981, the parties entered into a written contract wherein plaintiff agreed to sell and defendants agreed to purchase plaintiff's tavern and bar business located at 3001 Merrick Road, Wantagh, New York. Plaintiff did not own the premises which housed its tavern and bar business. Consequently, paragraph six of the contract of sale required defendants to obtain a lease for the premises as a condition precedent to the sale. The paragraph provided that the lease was to be for a term of 10 years at a rental of $1,700 per month. Additionally, the lease would include an option to purchase and would contain a provision requiring defendants to pay, as additional rent, any increase in the real estate taxes assessed on the building and to deposit two months rent as security. No time limitation for obtaining the lease was specified.
On the same date as the execution of the contract of sale, the parties also executed an employment agreement which merely provided that defendants would be employed as managers of the business, effective January 16, 1981, at a weekly salary of $100 each.
Neither contract spelled out the rights and obligations of the parties during the period between the date of the execution of the contract and the closing date of the sale, or the obligations and rights of the parties in the event a lease could not be secured.
Prior to executing the contract of sale, defendants had negotiated the essential terms of the lease with the landlord of the premises which were subsequently enumerated in paragraph six of the contract of sale. Additionally, the landlord agreed to make an application for a variance to enable defendants to use the back room of the premises in connection with the business, a use barred by the local zoning ordinance.
The lease tendered to defendants contained provisions at variance with the terms which the landlord had previously negotiated with defendants. Most notably, it contained a clause providing for an annual increase in rent in an amount equal to the cost of living index, a similar clause applicable to the option to purchase, and a clause fixing the responsibility and cost for obtaining a variance for the use of the back room upon defendants. Terms which were not the subject of prior negotiations were also included in the proffered lease, such as a clause making the tenant responsible for the maintenance of the air conditioning units, refrigeration units, and the plumbing, heating and electrical systems of the demised premises.
Defendants rejected the lease as unacceptable and notified plaintiff that they were cancelling the contract of sale.
Before plaintiff may secure redress for breach of a promise, the promise made by defendant must be sufficiently certain and specific so that the parties' intentions are ascertainable. Definiteness as to material matters is of the very essence of contract law; impenetrable vagueness and uncertainty will not suffice (Martin Delicatessen v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d...
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