GLEITMAN v. ZORBAS (2018)

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Queens County (Diccia T. Pineda–Kirwan, J.), entered August 14, 2017.  The order, insofar as appealed from, granted that branch of the defendant's motion which was for summary judgment dismissing the complaint and, in effect, on her counterclaim, and denied that branch of the plaintiffs' cross motion which was for summary judgment on the complaint and dismissing the defendant's counterclaim.

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

The record supports the Supreme Court's determination to grant that branch of the defendant's motion which was for summary judgment dismissing the complaint and, in effect, on her counterclaim, and to deny that branch of the plaintiffs' cross motion which was for summary judgment on the complaint and dismissing the defendant's counterclaim.  The documentary evidence submitted on the motion and the cross motion established that the plaintiffs made a unilateral modification to a material term of the proposed contract of sale.  This modification constituted a counteroffer that the defendant expressly rejected (see ADCO Elec. Corp. v. HRH Constr., LLC, 63 A.D.3d 653, 655, 880 N.Y.S.2d 188;  Woodward v. Tan Holding Corp., 32 A.D.3d 467, 470, 820 N.Y.S.2d 126;  Winiarski v. Duryea Assocs., LLC, 14 A.D.3d 697, 698, 789 N.Y.S.2d 510;  Harper v. Rodriguez, 272 A.D.2d 372, 707 N.Y.S.2d 362).  Since the parties never came to a meeting of the minds as to an essential term of the proposed agreement, there was no binding contract, and the defendant demonstrated her prima facie entitlement to judgment as a matter of law on her counterclaim, which sought the return of her down payment (see Nwauwa v. Mamos, 53 A.D.3d 646, 649, 862 N.Y.S.2d 110;  Woodward v. Tan Holding Corp., 32 A.D.3d at 470, 820 N.Y.S.2d 126;  Winiarski v. Duryea Assocs., LLC, 14 A.D.3d at 698, 789 N.Y.S.2d 510;  Harper v. Rodriguez, 272 A.D.2d at 372, 707 N.Y.S.2d 362).  In opposition, the plaintiffs failed to raise a triable issue of fact.

RIVERA, J.P., HINDS–RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.