Ultimately, MMB decided not to execute the $9.6 million construction loan, and the plaintiffs commenced the instant action, inter alia, to recover damages for breach of contract. "It is well settled that, if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed" (Scheck v. Francis, 26 N.Y.2d 466, 469-470; see Murphy v. EEG Enters., 245 A.D.2d 495; Silverite Constr. Co. v. Montefiore Med. Ctr., 239 A.D.2d 336, 337). In the instant case, the letter dated July 3, 1997, clearly expressed MMB's intent not to be bound until after "formal documents, satisfactory to MMB, are executed by all parties."
Petitioner provided sufficient proof that he had no legal authority to enter into a contract of sale with plaintiff and bind the estate of the decedent Thelma Waithour. See Murphy v. EEG Enterprises, Inc., 245 A.D.2d 495, 496 (2d Dept. 1997). The Petitioner contends that the memorandums of contract are frivolous, and its enforcement has no actual and substantial benefit to the Petitioner and the estate of Thelma Waithour.
A plaintiff lacks standing to sue without letters of administration, or "proof of an actual legal stake in the matter being adjudicated" (EPTL 11-3.1, Grosso v. Estate of Gershenson, 33 A.D. 3d 587, 822 N.Y.S. 2d 150 [N.Y.A.D. 2nd Dept., 2006] and Brandon v. Columbian Mutual Life Ins. Co., 264 A.D. 2d 436, 694 N.Y.S. 2d 134 [N.Y.A.D. 2nd Dept., 1999]). An executor cannot enter into any formal contract or agreement on behalf of the estate prior to issuance of letters testamentary (Murphy v. EEG Enterprises, Inc., 245 A.D. 2d 495, 666 N.Y.S. 2d 693 [N.Y.A.D. 2nd Dept., 1997]).