ZOHAR v. WEST 16TH ASSOCIATES LLC (2008)

Judgment, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 5, 2007, insofar as appealed from, upon a nonjury verdict in favor of defendants on the first and second causes of action of the complaint, unanimously affirmed, with costs.

The trial court correctly concluded that plaintiffs were not entitled to recovery under their first (breach of contract) and second (specific performance) causes of action.   The two preliminary agreements signed by the parties were not intended to bind the parties to a real estate transaction prior to the execution of a formal contract (see BMH Realty v. 399 E. 72nd St. Owners, 221 A.D.2d 165, 633 N.Y.S.2d 141 [1995] ).   Rather, the inclusion of a term stating that in the event that the formal contract is not signed, defendant seller agrees to pay plaintiff Interbelmont Realty's broker's fee within the time frame for signing the formal contract, establishes that the parties intended to leave themselves the option of not going forward with the deal (see Brause v. Goldman, 10 A.D.2d 328, 332-333, 199 N.Y.S.2d 606 [1960], affd. 9 N.Y.2d 620, 210 N.Y.S.2d 225, 172 N.E.2d 78 [1961] ).