Opinion
2021–08196 Index No. 602741/17
12-20-2023
Grace DUFFY, etc., respondent, v. Anthony LETERI, appellant.
Michael J. Miller, Miller Place, NY, for appellant. Somer & Heller, LLP, Commack, NY (Barbara Hutter and Jeffrey T. Heller of counsel), for respondent.
Michael J. Miller, Miller Place, NY, for appellant.
Somer & Heller, LLP, Commack, NY (Barbara Hutter and Jeffrey T. Heller of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., LARA J. GENOVESI, BARRY E. WARHIT, LILLIAN WAN, JJ.
DECISION & ORDER In an action, inter alia, for a judgment declaring that a contract for the sale of real property is unenforceable, the defendant appeals from an order of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated October 8, 2022. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment declaring the contract unenforceable, and denied that branch of the defendant's cross-motion which was for summary judgment on his counterclaim for specific performance of the contract.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In February 2017, the plaintiff commenced this action, inter alia, for a judgment declaring that a contract for the sale of real property is unenforceable. The defendant answered and asserted counterclaims, among other things, for specific performance of the contract. The plaintiff moved, inter alia, for summary judgment declaring the contract unenforceable. The defendant cross-moved, among other things, for summary judgment on his counterclaim for specific performance of the contract. In an order dated October 8, 2022, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment declaring the contract unenforceable, and denied that branch of the defendant's motion which was for specific performance of the contract. The defendant appeals.
Where a contract's material terms are not reasonably definite, the contract is unenforceable (see Toobian v. Golzad, 193 A.D.3d 778, 782, 147 N.Y.S.3d 61 ; 443 Jefferson Holdings, LLC v. Sosa, 174 A.D.3d 486, 487, 104 N.Y.S.3d 199 ). " ‘To be enforceable, a contract for the sale of real property must be evidenced by a writing sufficient to satisfy the statute of frauds’ " ( 443 Jefferson Holdings, LLC v. Sosa, 174 A.D.3d at 487, 104 N.Y.S.3d 199, quoting O'Hanlon v. Renwick, 166 A.D.3d 890, 891, 88 N.Y.S.3d 428 ; see General Obligations Law § 5–703[2] ). The statute of frauds provides that "[a] contract for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing" ( General Obligations Law § 5–703[2] ).
"To satisfy the statute of frauds, a memorandum, subscribed by the party to be charged, must designate the parties, identify and describe the subject matter, and state all the essential terms of a complete agreement" ( Best Global Alternative, Ltd. v. FCIC Constr. Servs., Inc., 170 A.D.3d 1101, 1103, 97 N.Y.S.3d 690 ; see TR–One, Inc. v. Lazz Dev. Co., Inc., 95 A.D.3d 1303, 945 N.Y.S.2d 416 ). " ‘[T]he writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone’ " ( Cohen v. Holder, 204 A.D.3d 973, 975, 167 N.Y.S.3d 527, quoting Nesbitt v. Penalver, 40 A.D.3d 596, 598, 835 N.Y.S.2d 426 [internal quotation marks omitted]).
"Parol evidence—evidence outside the four corners of the document—is admissible only if a court finds an ambiguity in the contract" ( Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 436, 963 N.Y.S.2d 613, 986 N.E.2d 430 ; see Del Vecchio v. Del Vecchio, 219 A.D.3d 572, 575, 195 N.Y.S.3d 32 ). "Whether or not a writing is ambiguous is a question of law to be resolved by the courts" ( Hanover Ins. Co. v. Catlin Specialty Ins. Co., 218 A.D.3d 754, 755, 192 N.Y.S.3d 680 [internal quotation marks omitted]). "[T]he description of real property in a contract of sale ‘need not be as detailed and exact as the description in a deed’ " ( Del Pozo v. Impressive Homes, Inc., 95 A.D.3d 1268, 1271, 945 N.Y.S.2d 368, quoting Elias v. Serota, 103 A.D.2d 410, 416, 480 N.Y.S.2d 344 ). " ‘Only reasonable certainty, not absolute certainty, as to the terms of the agreement is required’ " ( Del Pozo v. Impressive Homes, Inc., 95 A.D.3d at 1271, 945 N.Y.S.2d 368, quoting Matter of Licata, 76 A.D.3d 1076, 1077, 908 N.Y.S.2d 441 ). "Where the property is described with such definiteness and exactness as will permit it to be identified with reasonable certainty, ‘parol evidence would then be admissible to enable the court to identify precisely the property to which the contract relates’ " ( Del Pozo v. Impressive Homes, Inc., 95 A.D.3d at 1271, 945 N.Y.S.2d 368, quoting Boyajian v. Casey, 52 A.D.2d 1014, 1014, 383 N.Y.S.2d 714 ).
Here, the plaintiff demonstrated her entitlement to judgment as a matter of law by submitting evidence establishing that the contract lacked a material term. The description of the property was not sufficiently definite and exact to permit the property to be identified with reasonable certainty in satisfaction of the statute of frauds (see Total Telcom Group Corp. v. Kendal on Hudson, 157 A.D.3d 746, 747, 68 N.Y.S.3d 491 ). In opposition, the defendant failed to raise a triable issue of fact. Contrary to the defendant's contentions, the precise location of the property cannot be ascertained by extrinsic evidence (see Del Pozo v. Impressive Homes, Inc., 95 A.D.3d at 1271, 945 N.Y.S.2d 368 ). For the same reasons, the defendant failed to meet his prima facie burden on that branch of his cross-motion which was for summary judgment on his counterclaim for specific performance of the contract.
The defendant's remaining contentions are improperly raised for the first time on appeal (see Christiana Trust v. Leriche, 219 A.D.3d 564, 567, 194 N.Y.S.3d 143 ).
CONNOLLY, J.P., GENOVESI, WARHIT and WAN, JJ., concur.