Isabella
v.
Jackling

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Fourth Department, New York.Nov 17, 2017
65 N.Y.S.3d 410 (N.Y. App. Div. 2017)
65 N.Y.S.3d 410155 A.D.3d 1650

11-17-2017

David M. ISABELLA, Plaintiff–Appellant, v. James F. JACKLING, Individually and as Trustee of the James F. Jackling and Joan G. Jackling Living Trust, and Joan G. Jackling, Individually and as Trustee of the James F. Jackling and Joan G. Jackling Living Trust, Defendants–Respondents.

Richard A. Goldberg, Rochester, for Plaintiff–Appellant. Davidson Fink LLP, Rochester (David L. Rasmussen of Counsel), for Defendants–Respondents.


Richard A. Goldberg, Rochester, for Plaintiff–Appellant.

Davidson Fink LLP, Rochester (David L. Rasmussen of Counsel), for Defendants–Respondents.

PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:Plaintiff commenced this action seeking specific performance of a contract for the purchase and sale of real property that was allegedly formed after plaintiff was the highest bidder at an auction for a parcel of property owned by defendants. Plaintiff appeals from an order granting defendants' motion for summary judgment dismissing the complaint. We affirm.

It is fundamental that "[s]pecific performance may be awarded only where there is a valid existing contract for which to compel performance" ( Rojas v. Paine, 101 A.D.3d 843, 846, 956 N.Y.S.2d 81 [2d Dept.2012] ). Contrary to plaintiff's contention, we conclude that defendants met their initial burden on their motion by establishing that no valid contract existed inasmuch as the auction documents provided that the auction was conditional (see generally Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 449, 45 N.Y.S.3d 864, 68 N.E.3d 683 [2016] ), and defendants rejected plaintiff's bid by declining to sign the purchase offer (see General Obligations Law § 5–703[2] ; Tikvah Realty, LLC v. Schwartz, 43 A.D.3d 909, 909, 841 N.Y.S.2d 616 [2d Dept.2007] ; see also Post Hill, LLC v. E. Tetz & Sons, Inc., 122 A.D.3d 1126, 1127–1128, 997 N.Y.S.2d 525 [3d Dept.2014] ).

Plaintiff failed to raise a triable issue of fact in opposition to the motion. Contrary to plaintiff's contention, we conclude that his participation in the auction and tender of a down payment upon signing the purchase offer were not "unequivocally referable" to a contract so as to render applicable the part performance exception to the statute of frauds ( Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 235, 689 N.Y.S.2d 674, 711 N.E.2d 953 [1999] ; see General Obligations Law § 5–703 [4 ]; Tikvah Realty, LLC, 43 A.D.3d at 909, 841 N.Y.S.2d 616 ). Rather, plaintiff's actions constituted "preliminary steps which contemplate[d] the future formulation of an agreement" ( Francesconi v. Nutter, 125 A.D.2d 363, 364, 509 N.Y.S.2d 88 [2d Dept.1986] ; see Post Hill, LLC, 122 A.D.3d at 1128–1129, 997 N.Y.S.2d 525 ; see generally Gracie Sq. Realty Corp. v. Choice Realty Corp., 305 N.Y. 271, 282, 113 N.E.2d 416 [1953] ). We reject plaintiff's further contention that defendants are equitably estopped from asserting the statute of frauds. Inasmuch as the auction was conditional and the formation of a binding contract remained subject to defendants' acceptance of the purchase offer (see generally Stonehill Capital Mgt. LLC, 28 N.Y.3d at 449, 45 N.Y.S.3d 864, 68 N.E.3d 683 ), plaintiff could not reasonably rely on his submission of the highest bid along with statements in the auction documents that the parcel would "sell subject to immediate confirmation" as establishing a promise by defendants to sell the property to him (see Dates v. Key Bank Natl. Assn., 300 A.D.2d 1090, 1090, 751 N.Y.S.2d 892 [4th Dept.2002] ). Defendants declined to accept plaintiff's purchase offer, and they were therefore entitled to enter into a contract for the sale of the parcel with another party. Thus, "estoppel does not lie" in this case (id.).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.