MIRANCO CONTRACTING INC v. (and a third-party action). (2006)

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated March 9, 2005, as granted that branch of the motion of the defendants Allan Perel and Lillian H. Associates which was for summary judgment dismissing the causes of action based on breach of contract.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 “In order for a breach of contract to exist, there must be a meeting of the minds on the agreement said to have been breached” (Gomez v. Bicknell, 302 A.D.2d 107, 115, 756 N.Y.S.2d 209;  see Platt v. Portnoy, 220 A.D.2d 652, 653, 632 N.Y.S.2d 659).  “Mutual assent evincing the intention of the parties to form a contract is essential” (Gomez v. Bicknell, supra at 115-116, 756 N.Y.S.2d 209) and “[a]n agreement to agree, which leaves material terms of a proposed contract for future negotiation, is unenforceable” (Maffea v. Ippolito, 247 A.D.2d 366, 367, 668 N.Y.S.2d 653;  see Martin Delicatessen v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541).

 The defendants Allan Perel and Lillian H. Associates (hereinafter the respondents) sustained their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing the causes of action based on breach of contract (see CPLR 3212[b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718), by demonstrating that there was no written contract and no mutual assent or agreement to a material term of the alleged oral contract because the parties could not agree upon the price for the project (see Gomez v. Bicknell, supra at 115-116, 756 N.Y.S.2d 209;  Platt v. Portnoy, supra at 653, 632 N.Y.S.2d 659).   In opposition, the plaintiff failed to raise a triable issue of fact regarding the existence of a contract (see Zuckerman v. City of New York, supra;  Negri v. Stop & Shop, 65 N.Y.2d 625, 491 N.Y.S.2d 151, 480 N.E.2d 740).   Because there was only an agreement to agree (see Maffea v. Ippolito, supra), the Supreme Court properly granted that branch of the respondents' motion which for summary judgment dismissing the cause of action based on breach of contract.

 We note, however, that the statute of frauds was not applicable because the alleged contract could have been performed within one year (see General Obligations Law § 5-701[a][1];  D & N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 454, 483 N.Y.S.2d 164, 472 N.E.2d 992;  Slivinsky v. Bloomerside Coop., 202 A.D.2d 491, 492, 609 N.Y.S.2d 57) and, in any event, the respondents failed to plead it as an affirmative defense (see CPLR 3018[b];  CPLR 3211[e];  Matter of Sheldon E. Goldstein, P.C., 276 A.D.2d 321, 322, 714 N.Y.S.2d 456;  see also Admae Enters. v. Smith, 222 A.D.2d 471, 634 N.Y.S.2d 750).

The plaintiff's remaining contentions are without merit.