RAJ ACQUISITION CORP v. ATAMANUK

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

RAJ ACQUISITION CORP., et al., Plaintiffs-Appellants, v. James ATAMANUK, Defendant-Respondent.

Decided: May 16, 2000

SULLIVAN, P.J., ROSENBERGER, NARDELLI, ELLERIN and WALLACH, JJ. Bryan R. Williams, for Plaintiffs-Appellants. David Galanter, for Defendant-Respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about November 15, 1999, which granted defendant's motion to dismiss the complaint, canceled the notice of pendency, and denied plaintiffs' cross motion for partial summary judgment, unanimously affirmed, without costs.

 In this action for specific performance and damages for the alleged breach of a contract to purchase real property, the motion court properly found that the purported letter agreement was void pursuant to the Statute of Frauds (General Obligations Law § 5-703[2] ) since it failed to state all the material terms of a complete agreement, “a material element of the contemplated bargain [having] been left for further negotiations” (Generas v. Hotel Des Artistes, Inc., 117 A.D.2d 563, 566, 499 N.Y.S.2d 69, lv. denied 68 N.Y.2d 606, 506 N.Y.S.2d 1030, 498 N.E.2d 150).   The letter agreement relied on by plaintiffs failed to identify the corporate purchaser (see, Delfino v. Estate of Parkinson, 159 A.D.2d 476, 552 N.Y.S.2d 348, appeal dismissed 76 N.Y.2d 722, 557 N.Y.S.2d 873, 557 N.E.2d 109;  Dutchess Dev. Co., Inc. v. Jo-Jam Estates, Inc., 134 A.D.2d 478, 521 N.Y.S.2d 262).   Indeed, the agreement itself revealed that the parties had not intended to be bound until a further formal contract was negotiated and executed (see, Kniffen v. Kniffen, 223 A.D.2d 686, 637 N.Y.S.2d 453;  Chan v. Bay Ridge Park Hill Realty Co., 213 A.D.2d 467, 623 N.Y.S.2d 896, supra;  O'Brien v. West, 199 A.D.2d 369, 605 N.Y.S.2d 366).   Nor was the purported agreement removed from the Statute by virtue of plaintiffs' actions in obtaining a mortgage commitment and ordering a title report since those acts were not “unequivocally referable” to the agreement (see, Anostario v. Vicinanzo, 59 N.Y.2d 662, 664, 463 N.Y.S.2d 409, 450 N.E.2d 215;  Cooper v. Schube, 86 A.D.2d 62, 67-68, 449 N.Y.S.2d 32, affd. 57 N.Y.2d 1016, 457 N.Y.S.2d 479, 443 N.E.2d 953;  Delfino v. Estate of Parkinson, supra 159 A.D.2d at 477, 552 N.Y.S.2d 348), “ but rather can be explained as preliminary steps which contemplate the future formulation of an agreement” (Francesconi v. Nutter, 125 A.D.2d 363, 364, 509 N.Y.S.2d 88).

We have considered plaintiffs' remaining contention and find it unavailing.

MEMORANDUM DECISION.