LaRUFFA v. 223 (1999)

Order, Supreme Court, New York County (Lewis Friedman, J.), entered February 19, 1998, which, inter alia, granted defendants' motion to dismiss plaintiff's complaint for failure to state a cause of action, unanimously affirmed, with costs.

The complaint, seeking damages for breach of an alleged agreement to assign a mortgage to plaintiff Continental Capital Corporation, was properly dismissed because there was no enforceable agreement to that effect between the parties.   Indeed, in a preliminary letter agreement, the parties explicitly stated their intention not to be bound to any “understanding or agreement” until the terms were reduced to a writing signed by all of the parties.   No such signed writing was ever executed and there was, accordingly, no binding contract requiring the mortgage assignment (see, Scheck v. Francis, 26 N.Y.2d 466, 311 N.Y.S.2d 841, 260 N.E.2d 493;  R.G. Group, Inc. v. Horn & Hardart Co., 2d Cir., 751 F.2d 69, 74).   We note in this last connection that the letter written by the attorney purporting to represent the mortgagor and guarantor of the loan, and the unsigned memorandum of the attorney representing the bank, do not contain all of the essential terms of the proposed assignment, and are insufficient, in any event, to satisfy the Statute of Frauds.

MEMORANDUM DECISION.