CHECKLA v. STONE MEADOW HOMES INC

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

Bruce CHECKLA, et al., Appellants, v. STONE MEADOW HOMES, INC., Respondent.

Decided: February 13, 2001

FRED T. SANTUCCI, J.P., SONDRA MILLER, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ. Coral Ortenberg Zeck & Codispoti, P.C., Suffern, N.Y. (Reuben Ortenberg of counsel), for appellants. Granik Silverman Campbell & Hekker, New City, N.Y. (David W. Silverman and Patrick M. Campbell of counsel), for respondent.

In an action, inter alia, for specific performance of a contract for the sale of real property and the construction of a residence, the plaintiffs appeal from (1) an order of the Supreme Court, Rockland County (Meehan, J.), dated February 24, 2000, which, inter alia, granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, dated April 12, 2000, which, upon the order, dismissed the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment.

 “To satisfy the Statute of Frauds, [a] writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone * * * If the contract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreed to, the remedy of specific performance is not available” (O'Brien v. West, 199 A.D.2d 369, 370, 605 N.Y.S.2d 366).

 The real estate binder at issue lacked many essential terms.   Moreover, the binder was expressly “subject to the execution of a formal contract of sale between the parties within 14 days”.   Although the parties offer conflicting reasons as to why no final contract was executed, it is apparent that the parties did not intend to be bound by the binder as to all essential terms of the conveyance of real property and the construction of a new home thereon.   Rather, the binder was but a preliminary “agreement to agree” which is unenforceable under the Statute of Frauds, Ramos v. Lido Home Sales Corp., 148 A.D.2d 598, 539 N.Y.S.2d 63;  accord, Engle v. Lipcross Inc., 153 A.D.2d 603, 544 N.Y.S.2d 638;  see, RAJ Acquisition Corp., v. Atamanuk, 272 A.D.2d 164, 710 N.Y.S.2d 21;  Parkway Group v. Modell's Sporting Goods, 254 A.D.2d 338, 678 N.Y.S.2d 656;  Blaufeux v. Paznik, 162 A.D.2d 573, 556 N.Y.S.2d 762;  Hazirjian v. Reilly, 146 A.D.2d 568, 536 N.Y.S.2d 182;  Monaco v. Nelson, 121 A.D.2d 371, 502 N.Y.S.2d 947.   Therefore, the Supreme Court correctly granted the defendant's motion for summary judgment dismissing the complaint.

The plaintiffs' remaining contentions are without merit.

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