LEIST v. JMC PHARMACY INC (2018)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered January 26, 2017, which granted defendants' motion to dismiss the complaint, unanimously affirmed, with costs.

There is no written contract, and the documents submitted by plaintiffs in an effort to show a purported meeting of the minds “flatly contradict[ ]” their allegations that the parties had come to an agreement on the contract's material terms (Matter of Sud v. Sud, 211 A.D.2d 423, 424, 621 N.Y.S.2d 37 [1st Dept. 1995]; see Joseph Martin, Jr., Delicatessen v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541 [1981] ).  The transcribed conversation submitted by plaintiffs to the court demonstrates that the parties were continuing to negotiate the services plaintiffs were to provide and the form that the written agreement between them would take.  Given this lack of agreement, there was only an unenforceable agreement to agree between the parties, which is not subject to a breach of contract claim (id.).

The statute of frauds bars plaintiffs' claim of breach of the oral commission agreement.  The type of agreement alleged here is the very type of agreement that has been held unenforceable under the statute (General Obligations Law § 5–701[a][10];  Fitz–Gerald v. Donaldson, Lufkin & Jenrette, Inc., 294 A.D.2d 176, 741 N.Y.S.2d 682 [1st Dept. 2002] ).  The agreement was also void because it was not in writing and was not capable of being performed within one year, as the performance of the contract was dependent upon the will of third parties (General Obligations Law § 5–701[a][1];  Apostolos v. R.D.T. Brokerage Corp., 159 A.D.2d 62, 64–65, 559 N.Y.S.2d 295 [1st Dept. 1990] ).

We have considered plaintiffs' remaining contentions and find them unavailing.