LONGO v. ESTATE OF SWEENEY

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Supreme Court, Appellate Division, Fourth Department, New York.

Michael A. LONGO and Robert L. Longo, Jr., Plaintiffs-Respondents, v. The ESTATE OF Lena Peters SWEENEY, Deceased, Defendant-Appellant, et al., Defendant.

Decided: September 30, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, SMITH, PINE, AND HAYES, JJ. Peter M. Hobaica, LLC, Utica (Peter M. Hobaica of Counsel), for Defendant-Appellant. Kowalczyk, Tolles, Deery & Hilton, LLP, Utica (Robert K. Hilton, III, of Counsel), for Plaintiffs-Respondents.

 Plaintiffs commenced this breach of contract action and thereafter moved for summary judgment, seeking specific performance of the contract at issue, pursuant to which they were to purchase a parcel of vacant land owned by Lena Peters Sweeney (decedent).   Supreme Court properly granted plaintiffs' motion.   We reject the contention of defendant, decedent's estate, that the contract failed to satisfy the statute of frauds.   A contract for the sale of real property must, inter alia, “ ‘state all of the essential terms of a complete agreement’ ” (Wacks v. King, 260 A.D.2d 985, 986, 689 N.Y.S.2d 298;  see Simmonds v. Marshall, 292 A.D.2d 592, 740 N.Y.S.2d 362;  Read v. Henzel, 67 A.D.2d 186, 188-189, 415 N.Y.S.2d 520).   “The law is well established that a contemplated contract which omits a material element is unenforceable” under the statute of frauds (Ashkenazi v. Kelly, 157 A.D.2d 578, 578, 550 N.Y.S.2d 322;  see Willmott v. Giarraputo, 5 N.Y.2d 250, 253, 184 N.Y.S.2d 97, 157 N.E.2d 282).   Pursuant to the terms of the contract at issue herein, the purchase price was $50,000, and a $5,000 cash deposit was payable upon acceptance by plaintiffs, with $35,000 in owner financing and $10,000 in cash due at closing.   The “Purchase Contract Addenda” set forth the terms of the purchase money mortgage, i.e., interest at the rate of 9% per annum, amortized for a period of seven years, with the option to prepay any or all of the principal balance at any time and without penalty.   Contrary to defendant's contention, it cannot be said that the contract was merely an agreement to agree to a more formal contract in the future that would provide for the essential terms thereto and, indeed, there is no indication that further negotiations were contemplated (see Wacks, 260 A.D.2d at 987, 689 N.Y.S.2d 298;  cf. Willmott, 5 N.Y.2d at 252-253, 184 N.Y.S.2d 97, 157 N.E.2d 282;  O'Brien v. West, 199 A.D.2d 369, 371, 605 N.Y.S.2d 366;  Read, 67 A.D.2d at 189, 415 N.Y.S.2d 520).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: