MORGAN SERVICES INC v. ABRAMS

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

MORGAN SERVICES, INC., Plaintiff-Appellant, v. Sandra ABRAMS, Doing Business as The Dudley, Defendant-Respondent.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, PINE, AND HAYES, JJ. Borins, Halpern & Paskowitz, Buffalo (Michael Paskowitz of Counsel), for Plaintiff-Appellant. Margaret A. Murphy, Buffalo, for Defendant-Respondent.

 Plaintiff commenced this action alleging that defendant breached her contract with plaintiff, pursuant to which plaintiff agreed to provide linen items for use in defendant's business.   By its terms, the contract was to expire 60 months from the date of the first delivery, but defendant terminated the contract approximately 72 weeks into the contractual period.   We agree with plaintiff that Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint.   In support of her motion, defendant contended that the contract was not delivered to her.   It is well settled, however, that “[a] binding contract ․ may be made without a physical delivery of the instrument evidencing the contract” (Birch v. McNall, 19 A.D.2d 850, 850, 244 N.Y.S.2d 60;  see Bohlen Indus. of N. Am. v. Flint Oil & Gas, 106 A.D.2d 909, 910, 483 N.Y.S.2d 529).   Indeed, “ ‘[a]ny evidence that shows that the parties to a written instrument intend that the same should be operative and binding upon them is sufficient in an action to enforce its provisions' ” (Birch, 19 A.D.2d at 850, 244 N.Y.S.2d 60, quoting Sarasohn v. Kamaiky, 193 N.Y. 203, 214, 86 N.E. 20).  “It is basic, of course, that a contract requires an offer and acceptance, and where the parties have agreed that delivery is essential to the making of a contract, there is no agreement without it” (Bohlen Indus. of N. Am., 106 A.D.2d at 910, 483 N.Y.S.2d 529, citing Schwartz v. Greenberg, 304 N.Y. 250, 107 N.E.2d 65).   Here, defendant failed to meet her burden on the motion by establishing as a matter of law that the parties “ agreed that delivery [was] essential to the making of [the] contract” (id.).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

MEMORANDUM: