Opinion
No. 1062.
May 15, 2007.
Order, Supreme Court, New York County (Debra A. James, J.), entered September 1, 2006, which, in an action for specific performance of an oral contract to convey a cooperative apartment, after a nonjury trial, dismissed the complaint, unanimously affirmed, without costs.
Kenneth J. Glassman, New York, for appellant.
Lusthaus Lusthaus, PLLC, New York (Russell B. Lusthaus of counsel), for respondent.
Before: Tom, J.P., Friedman, Sullivan, Buckley and Kavanagh, JJ.
Plaintiff's claim that he paid defendant $20,000 in part performance of defendant's oral agreement to sell him the subject apartment for $40,000 was properly rejected on a finding that the parties never reached a meeting of the minds as to when and how the $40,000 was to paid ( see MacKenzie v MacKenzie, 13 AD3d 1010). Such an understanding is not shown by plaintiffs testimony that defendant said to him, "look, I need some cash right now, can you send me some money, and we'll work all this out, the details, we'll hammer it out." Even if this testimony did show a complete agreement to pay the $40,000 in unspecified installments, the amount and timing of which were to be unilaterally determined by plaintiff, plaintiff's subsequent payment to defendant of $20,000 would not be unequivocally referable to the agreement, given the parties' mother/son relationship, defendant's illness and privation, and a record that is unclear whether a substantial portion of the $20,000 was paid after defendant had already repudiated any agreement that did not require immediate payment in full ( see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 236).
We have considered and rejected plaintiffs other arguments.