Opinion
1224-, 1225, M-04400 Index No. 152874/21 Case Nos. 2022-04667, 2022-04668
12-14-2023
MAXGAIN LLC, Plaintiff-Respondent, v. Sumit RAI, et al., Defendants-Appellants.
The Zweig Law Firm, P.C., Cedarhurst (Jonah S. Zweig of counsel), for appellants. Belkin Burden Goldman, LLP, New York (Magda L. Cruz of counsel), for respondent.
The Zweig Law Firm, P.C., Cedarhurst (Jonah S. Zweig of counsel), for appellants.
Belkin Burden Goldman, LLP, New York (Magda L. Cruz of counsel), for respondent.
Manzanet–Daniels, J.P., Oing, Moulton, Shulman, Rosado, JJ.
Judgment, Supreme Court, New York County (Suzanne J. Adams, J.), entered September 28, 2022, awarding damages in favor of plaintiff and against defendants, and bringing up for review an order, same court and Justice, entered September 13, 2022, which granted plaintiff's motion to dismiss defendants’ affirmative defenses and for summary judgment on all its causes of action, unanimously affirmed, with costs. Appeal from aforesaid order, unanimously dismissed, with costs, as subsumed in the appeal from the judgment.
Plaintiff seeks to recover rent arrears of $202,000 and other amounts owed by defendant SVN, the tenant, pursuant to a residential lease for a condominium unit. Defendants do not dispute that tenant owed rent under the lease but assert that plaintiff was not entitled to summary judgment because issues of fact exist concerning whether the parties entered into a binding settlement agreement through a phone call and an exchange of text messages which superseded and terminated the lease.
The lease provides that it can only be ended in a writing, signed by tenant and plaintiff (see General Obligations Law § 15–301[1] ). In a text exchange, plaintiff's manager and defendant Sumit Rai, on behalf of tenant, agreed on a "settlement amount" of $143,000 and that tenant's security deposit could be applied to that amount. Rai stated he would draft the agreement and plaintiff's manager stated that he would have to inspect the unit before signing the deal. Later that day, plaintiff's manager advised Rai that plaintiff did not agree to the proposed settlement terms. In these circumstances, the motion court properly concluded that the exchange of texts did not contain all material terms of a settlement agreement (see Matter of Philadelphia Ins. Indem. Co. v. Kendall, 197 A.D.3d 75, 81, 151 N.Y.S.3d 392 [1st Dept. 2021] ). Furthermore, since the parties indicated they did not intend to be bound until an agreement was drafted and signed, these text messages could not constitute a contract (see Luxor Capital Group, L.P. v. Seaport Group LLC, 148 A.D.3d 590, 590, 50 N.Y.S.3d 70 [1st Dept. 2017] ; Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce, 70 A.D.3d 423, 426, 894 N.Y.S.2d 47 [1st Dept. 2010], lv denied 15 N.Y.3d 704, 2010 WL 3397330 [2010] ). Accordingly, the exchange of texts was only an unenforceable "agreement to agree" (see Dragon Head LLC v. Elkman, 118 A.D.3d 424, 425, 987 N.Y.S.2d 60 [1st Dept. 2014] ), which does not provide a defense to plaintiff's claims.
We have considered defendants’ remaining arguments and find them unavailing.
Motion for a stay pending appeal, denied.