Opinion
No. 570385/15.
10-01-2015
Elena ZAKHAROVA, Plaintiff–Appellant, v. RAISING ROVER LTD., Jeffrey Silverstein and Frankie Foronjy, Defendants–Respondents.
Opinion
PER CURIAM.
Order (Lynn R. Kotler, J.), dated May 1, 2014, insofar appealed from, affirmed, with $10 costs.
Civil Court correctly denied plaintiff's motion to “enforce a settlement.” The documentary evidence submitted established that plaintiff made unilateral modifications to the proposed, unexecuted “settlement agreement.” These modifications constituted a counteroffer that defendant expressly rejected (see Winiarski v. Duryea Assoc., LLC, 14 AD3d 697 2005 ). Since the parties never came to a meeting of the minds as to the essential terms of the agreement, there was no binding and enforceable agreement (see Fulginiti v. Fulginiti, 127 AD3d 1382, 1383 2015 ).
We also sustain the denial of plaintiff's alternative request for partial summary judgment. Plaintiff failed to establish a prima facie entitlement to summary judgment on her breach of contract and General Business Law § 753 causes of action, since she did not provide notice to defendant of the dog's alleged congenital health problems as required by either the parties' February 4, 2011 contract or GBL § 753 (see Sacco v. Tate, 175 Misc.2d 901 [App Term, 2nd Dept 1998] ).
This constitutes the decision and order of the Court.
I concur.