Opinion
No. 224-225.
February 13, 2007.
Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered December 8, 2005, dismissing the complaint as against defendants Galesi and Elysium Energy, LLC, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered November 22, 2005, which granted defendants-respondents' summary judgment motion, unanimously dismissed, without costs.
Bressler, Amery Ross, P.C., New York (David H. Pikus of counsel), for appellants.
Menaker Herrmann LLP, New York (Richard G. Menaker of counsel), for respondents.
Before: Tom, J.P., Sullivan, Nardelli and Gonzalez, JJ.
Assuming that the alleged promise was made, it amounted to no more than an indefinite and unenforceable "agreement to agree" ( see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91). Although plaintiffs presented evidence that the negotiating parties had agreed as to price and quantity, the exchange of drafts, further discussion, and the totality of the circumstances clearly showed that there was never a meeting of the minds on all essential terms ( see Ross v Wu, 27 AD3d 237, lv denied 7 NY3d 713 [2006]). Furthermore, judicial estoppel would bar recognition and enforcement of any such promise. [ See 12 12 Misc 3d 1186(A), 2005 NY Slip Op 52310(U) (2005).]