Tamir v. Greenberg

— In an action for specific performance of an alleged contract for the sale of real property or to recover damages for breach of that contract, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Goldstein, J.), dated April 26, 1985, which granted the defendants’ motion to dismiss the complaint and thereupon canceled a notice of pendency.

Order and judgment affirmed, with costs.

In November 1984 the defendants David and Barbara Greenberg advertised for the sale of residential property which they owned as tenants by the entirety. On November 25, 1984, the plaintiff visited the property and expressed an interest in purchasing it. Later that day or on the following day, Mr. Greenberg advised the plaintiff that he had previously signed a binder for the property. Mr. Greenberg claims that he informed the plaintiff that a contract for the sale of such premises would only be entered into if he could "get out of the first binder we had already accepted on the property” and the plaintiff agreed.

The plaintiff, on his part, asserts that he was reluctant to enter into a binder with Mr. Greenberg because of the outstanding first binder but that Mr. Greenberg assured him that he need not be concerned with the prior binder, and that he was in a position to annul and void the prior binder and sell the premises to the plaintiff.

On November 26, 1984, the plaintiff gave Mr. Greenberg a deposit of $1,000. As evidence of the transaction Mr. Green-berg drafted the following document, which Mrs. Greenberg then copied to make it more legible:

"11/26/84

"I, David Greenberg received a deposit from Shalom Tamir in the amount of $1,000.00 for the purchase of my house, 223-58 56 Road, Bayside, N.Y. 11364. The total purchase price is $213,000.00.

"I am leaving all carpeting, window treatments, and all lighting fixtures, except for the dining room fixture and the upstairs center hall globe fixture. The pool, deck, and shed are also in the contract, plus 2 refrigerators, a washer, dryer, dishwasher, and all kitchen appliances.

"A formal contract will be drawn up by attorney’s [sic] for both parties within 10 days.

’’Seller /s/ David Greenberg ’’Buyer Is/ Shalom Tamir”.

On or about December 8, 1984, the defendants returned the plaintiff’s deposit since a formal contract had not been entered into between the parties within the time specified in the foregoing document.

The plaintiff then instituted this action for specific performance or, in the alternative, to recover damages for breach of contract. The defendants moved to dismiss the complaint on the grounds, inter alia, that it failed to state a cause of action and that the action is barred by the Statute of Frauds. The defendants argued that the memorandum was merely "an agreement to agree” and, in any event, was unenforceable since Mrs. Greenberg’s signature was lacking.

Special Term granted the defendants’ motion on the ground that "the failure of the joint owner Barbara Greenberg to sign the document renders the alleged contract to sell the home of the defendants David and Barbara Greenberg invalid and unenforceable”.

We affirm but for the reason that the action is barred by the Statute of Frauds.

Under the Statute of Frauds (General Obligations Law § 5-703), a memorandum allegedly evidencing a contract must state the entire agreement with such certainty that the substance thereof will appear from the writing alone. It must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement (Aceste v Wiebusch, 74 AD2d 810). The memorandum in question lacks a number of essential terms. Of course, the law may imply some of them. But, it is clear from the documents contained in the record that the parties had agreed orally that no binding contract would exist unless and until the first binder was avoided. They may disagree as to whether Mr. Greenberg said that he could accomplish a cancellation easily but it cannot be denied that they did agree orally that any contract between them was subject to the cancellation of the prior binder. Manifestly, that was a material term of their agreement and the memorandum the parties signed is silent with respect to that material term. Our dissenting colleague refers to the contention of the plaintiff that at the time David Greenberg and he signed the document in issue, Mr. Green-berg discussed the matter with his lawyer who said "that the agreement was a solid contract and that it is more than sufficient and that there is no need for a lawyer”. Quite apart from the fact that such representation by Mr. Greenberg cannot have the effect in making a noncontract into a contract, the statement has no bearing on the fact that the record establishes that the parties had orally agreed that the cancellation of the prior binder was a "must”, a condition precedent, to the formation of a binding contract. That being so, its exclusion from the memorandum is fatal to plaintiff’s case. Moreover, the memorandum specifically provides for a formal contract to be drawn up by the attorneys for the respective parties within 10 days. Such a provision coupled with the fact that the material term mentioned above, i.e., that any agreement was subject to Mr. Greenberg’s avoiding the first binder, demonstrates that the parties did not intend the memorandum to be evidence of a complete or final agreement (see, Sheehan v Culotta, 99 AD2d 544). As there was no contract and only an "agreement to agree”, there was no right to specific performance or damages. Gibbons, Niehoff and Kunzeman, JJ., concur.