Opinion
430
April 30, 2002.
Order, Supreme Court, New York County (Charles Ramos, J.) entered on or about December 18, 2000, which granted defendant's motion to dismiss the complaint, unanimously modified, on the law, the motion denied as to the first and third causes of action for breach of contract and loss of business opportunity, those causes of action denied, the complaint otherwise reinstated and the matter remanded for further proceedings, and otherwise affirmed, without costs.
Howard I. Elman, for plaintiff-appellant.
Michael Ira Asen, for defendant-respondent.
Before: Nardelli, J.P., Tom, Sullivan, Rubin, Friedman, JJ.,
It is well established that on a CPLR 3211 motion to dismiss, the pleadings are to be construed so as to give the plaintiff the benefit of every plausible favorable inference, the court's task being only to determine if the facts alleged comport with a cognizable legal theory (Leon v. Martinez, 84 N.Y.2d 83, 87-88; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634), unless the essential facts can be negated on the basis of documentary (cf., Blackgold Realty Corp. v. Milne, 119 A.D.2d 512, affd 69 N.Y.2d 719; cf., Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81, affd 94 N.Y.2d 659). A contract for sale "will not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy" (City University of New York v. Finalco, 129 A.D.2d 494, 495; UCC 2-204 ) and, under the UCC, may be valid notwithstanding that certain items are not yet resolved (cf., Kleinschmidt Div. of SMC Corp. v. Futuronics Corp., 41 N.Y.2d 972). With regard to the contracts in this case, allegedly predicated on several documents exchanged between the parties that plaintiff claims constituted the requisite offers and acceptances, at this pre-discovery stage of the proceedings, we cannot find as a matter of law that contracts were not formed. Rather, further evidence, if available, will be necessary to determine the parties' respective understandings and intents when forwarding or receiving relevant documents. Accordingly, we reverse as to the breach of contract claim in the first cause of action and the loss of business opportunity claim in the third cause of action, reinstate the complaint to that extent and remand for further proceedings. However, we agree with the motion court as to the dismissal of the negligent misrepresentation cause of action.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.