Opinion
March 20, 1989
Appeal from the Supreme Court, Queens County (Di Tucci, J.).
Ordered that the order is affirmed, with costs.
Contrary to the appellant's contentions, the court properly dismissed his complaint as the binder agreement did not satisfy the Statute of Frauds (General Obligations Law § 5-703). Generally, a binder agreement can be enforced as a contract where it identifies the parties, describes the subject property, recites the essential terms and is signed by the party to be charged (see, Birnhak v. Vaccaro, 47 A.D.2d 915). The binder in the case at bar, however, was deficient in several respects.
Initially, as the Supreme Court found, the agreement failed to identify the seller of the property and hence is not susceptible to specific performance (see, Dickson v. Mitchell, 87 A.D.2d 697). Moreover, several essential terms were omitted. Among those not provided by the agreement were terms setting the closing date and the quality of title to be conveyed. While these deficiencies in and of themselves are not fatal, as they may be implied by law (see, e.g., Dahm v. Miele, 136 A.D.2d 586), specific performance was nevertheless correctly denied.
The binder provided that if the purchaser's offer was accepted, "more formal contracts containing all of the terms and conditions shall be signed". Contracts were subsequently exchanged. However, no agreement could be reached, as the purchaser objected to the defendant's attempt to render time of the essence and the purchaser further objected to the title proffered, alleging it to be unmarketable. Under these circumstances it is clear that the binder was not an enforceable contract as there was no meeting of the minds and the parties never intended that it constitute the full and binding agreement (see, Donner v. Septimus, 137 A.D.2d 484; Jaffer v. Miles, 134 A.D.2d 572, appeal dismissed 71 N.Y.2d 927; St. Paul's Realty Corp. v. Huan Jen Chin, 133 A.D.2d 450; Monaco v. Nelson, 121 A.D.2d 371, lv denied 69 N.Y.2d 605). Rather, by providing that more formal contracts would be drafted to recite the complete terms and conditions, the binder constituted merely an agreement to agree, unenforceable under the Statute of Frauds (see, Tamir v. Greenberg, 119 A.D.2d 665, lv denied 68 N.Y.2d 607; Sheehan v. Culotta, 99 A.D.2d 544). Mollen, P.J., Mangano, Thompson and Rubin, JJ., concur.