The Defendant property owner sent the Plaintiff an unexecuted proposed contract which included a purchase price. The Plaintiff signed the contract and submitted it to the Defendant with a contract deposit. However, the Plaintiff included handwritten additions, including one that would have had the Defendant represent that the “[p]remises are a legal (2) family dwelling as per the certificate of occupancy”. The Defendant’s attorney changed the handwritten description of the property to a “(1) family dwelling” and sent a fully executed contract back to the Plaintiff’s attorney. The Plaintiff informed the Defendant that it would not close without a certificate of occupancy designating the property as a two-family dwelling or a letter of no objection to that effect. The Defendant declared that the Plaintiff had defaulted; the Plaintiff denied that there was a binding contract and demanded that the deposit be returned.
The Plaintiff commenced an action for specific performance. The Supreme Court, Kings County, granted that branch of the Defendant’s motion which was for summary judgment dismissing the complaint and cancelled the notice of pendency. The Appellate Division, Second Department, affirmed the Order of the lower court. According to the Appellate Division,
“…the documentary evidence established that the parties were never truly in agreement with respect to all material terms, because the plaintiff did not intend to pay the proposed contract price for a one-family dwelling, and the defendant could not or would not represent that the subject property was a legal two-family dwelling. The plaintiff’s signing of the proposed contract did not create a binding agreement…as the plaintiff’s acceptance was conditioned on material changes to the contract and, thus, constituted a counteroffer, which the defendant did not accept. Because the parties never came to a meeting of the minds regarding essential terms of the agreement, there was no binding and enforceable contract between the parties [citations omitted].”
Utica Builders, LLC v. Collins, 2019 NY Slip Op 07312, decided October 9, 2019, is posted at http://www.nycourts.gov/reporter/3dseries/2019/2019_07312.htm.
