Opinion
2013-03-6
PRICELESS CUSTOM HOMES, INC., appellant, v. Martha O'NEILL, etc., respondent.
Sinnreich Kosakoff & Messina LLP, Central Islip, N.Y. (Timothy F. Hill of counsel), for appellant. McLaughlin & Stern, LLP, New York, N.Y. (Aimee E. Saginaw of counsel), for respondent.
Sinnreich Kosakoff & Messina LLP, Central Islip, N.Y. (Timothy F. Hill of counsel), for appellant. McLaughlin & Stern, LLP, New York, N.Y. (Aimee E. Saginaw of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SYLVIA HINDS–RADIX, JJ.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated May 21, 2012, which denied its motion for summary judgment on the issue of whether a certain unsigned document constituted an enforceable agreement between the parties.
ORDERED that the order is affirmed, with costs.
CPLR 3123(a) provides, in relevant part, that “a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents ..., or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.” “If the requested admission is not denied or otherwise explained ‘within twenty days after service thereof or within such further time as the court may allow,’ then the requested admission will be deemed admitted” ( Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d 770, 771, 930 N.Y.S.2d 643, quoting CPLR 3123[a] ). “ ‘The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial’ ” ( Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d at 771–772, 930 N.Y.S.2d 643, quoting DeSilva v. Rosenberg, 236 A.D.2d 508, 508, 654 N.Y.S.2d 30;see Rosenfeld v. Vorsanger, 5 A.D.3d 462, 462, 772 N.Y.S.2d 597). “ ‘It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial’ ” ( Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d at 772, 930 N.Y.S.2d 643, quoting DeSilva v. Rosenberg, 236 A.D.2d at 508, 654 N.Y.S.2d 30;see Rosenfeld v. Vorsanger, 5 A.D.3d at 462, 772 N.Y.S.2d 597). “ ‘A notice to admit which goes to the heart of the matters at issue is improper’ ” ( Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d at 772, 930 N.Y.S.2d 643, quoting DeSilva v. Rosenberg, 236 A.D.2d at 508, 654 N.Y.S.2d 30;see Tolchin v. Glaser, 47 A.D.3d 922, 923, 849 N.Y.S.2d 439;Rosenfeld v. Vorsanger, 5 A.D.3d at 462, 772 N.Y.S.2d 597;Glasser v. City of New York, 265 A.D.2d 526, 526, 697 N.Y.S.2d 167;see also Riner v. Texaco, Inc., 222 A.D.2d 571, 572, 635 N.Y.S.2d 658).
Here, contrary to the plaintiff's contention, the matter concerning which it sought an admission, whether a particular unsigned document constituted an enforceable agreement between the parties, will be in dispute at trial ( see generallyCPLR 3123[a]; Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d at 771–772, 930 N.Y.S.2d 643;Rosenfeld v. Vorsanger, 5 A.D.3d at 462, 772 N.Y.S.2d 597;DeSilva v. Rosenberg, 236 A.D.2d at 508, 654 N.Y.S.2d 30). Moreover, as the Supreme Court properly determined, the admission sought will be at the heart of the controversy in this case ( see Nacherlilla v. Prospect Park Alliance, Inc., 88 A.D.3d at 772, 930 N.Y.S.2d 643;Tolchin v. Glaser, 47 A.D.3d at 923, 849 N.Y.S.2d 439;Glasser v. City of New York, 265 A.D.2d at 526, 697 N.Y.S.2d 167;see also Riner v. Texaco, Inc., 222 A.D.2d at 572, 635 N.Y.S.2d 658). Accordingly, the Supreme Court properly determined that the plaintiff was not entitled to summary judgment pursuant to CPLR 3123(a).
The Supreme Court also properly determined that the plaintiff was not entitled to summary judgment on the theory that the parties demonstrated their intent to be bound by the unsigned written agreement. “[A] contract may be valid even if it is not signed by the party to be charged, provided its subject matter does not implicate a statute—such as the statute of frauds (General Obligations Law § 5–701)—that imposes such a requirement” ( Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 368, 795 N.Y.S.2d 491, 828 N.E.2d 593). “[A]n unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound” ( id. at 369, 795 N.Y.S.2d 491, 828 N.E.2d 593;see Geha v. 55 Orchard St., LLC, 29 A.D.3d 735, 736, 815 N.Y.S.2d 253). “ ‘In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look ... to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds' ” ( Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d at 368, 795 N.Y.S.2d 491, 828 N.E.2d 593, quoting Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 N.Y.2d 397, 399, 393 N.Y.S.2d 350, 361 N.E.2d 999;see Minelli Constr. Co., Inc. v. Volmar Constr., Inc., 82 A.D.3d 720, 721, 917 N.Y.S.2d 687). Here, the plaintiff failed to establish, prima facie, that the parties' words and deeds demonstrated their intent to be bound by the terms of the unsigned written agreement ( cf. Geha v. 55 Orchard St., LLC, 29 A.D.3d at 736, 815 N.Y.S.2d 253).
The Supreme Court therefore properly denied the plaintiff's motion for summary judgment on the issue of whether the unsigned document constituted an enforceable agreement between the parties.