Contracts, Policies, and Stipulations

Silber v New York Life Ins. Co., 2012 NY Slip Op 00816 (1st Dept., 2012)

For the reasons set forth below, we agree with the motion court that there was no "meeting of the minds" constituting the formation of a contract between the parties. It is axiomatic that a party seeking to recover under a breach of contract theory must prove that a binding agreement was made as to all essential terms (Paz v Singer Co., 151 AD2d 234, 235 [1989]). Courts look to the basic elements of the offer and the acceptance to determine whether there is an objective meeting of the minds sufficient to give rise to a binding and enforceable contract (Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589 [1999]). An agreement must have sufficiently definite terms and the parties must express their assent to those terms (id.).

In this case, plaintiff claims that the parties entered into an oral agreement, which was then confirmed in the May 29 letter from defendant. This contention is directly refuted by plaintiff's June 16 letter, in which he attempts to negotiate terms related to his employment and reinstatement. Plaintiff's claim that there would be no point in "moving forward" without resolving one of these terms indicates that it is a material term. Thus, plaintiff's own correspondence clearly indicates that material terms had not been agreed upon. Plaintiff's failure to show that the parties agreed to definite terms is fatal to his claim of a prior oral agreement.

Thus, as defendant asserts, the May 29 letter was merely an offer that plaintiff did not accept, and indeed rejected. " It is a fundamental principle of contract law that a valid acceptance must comply with the terms of the offer'" (Lamanna v Wing Yuen Realty, 283 AD2d 165, 166 [2001], lv denied 96 NY2d 719 [2001], quoting Roer v Cross County Med. Ctr. Corp., 83 AD2d 861 [1981]). Where "the offer specifies the … mode of acceptance, an acceptance … in any other manner[ ] is wholly nugatory and ineffectual" (Rochester Home Equity v Guenette, 6 AD3d 1119, 1120 [2004] [internal quotation marks and citation omitted]). Furthermore, a purported acceptance that is "qualified with conditions" is a rejection of the offer (Lamanna, 283 AD2d at 166 [2001] [internal quotation marks omitted]; see Homayouni v Banque Paribas, 241 [*4]AD2d 375, 376 [1997] ["whenever a purported acceptance is even slightly at variance with the terms of an offer, the qualified response operates as a rejection and termination of … the initially offered terms"]).

Defendant's May 29 letter specified the manner of acceptance by providing, "If you are in agreement with the terms set forth in this letter, please sign below and return a copy of this letter to me." Plaintiff concedes that he did not return a signed copy of the May 29 letter as required in order to accept defendant's offer. Nor did he indicate his acceptance by complying with any of the terms set forth in the letter. Plaintiff did not resign, and his June 16 letter indicates that he had not closed on the sale of his life settlement business.

Not only did plaintiff fail to accept defendant's offer, his June 16 letter specifically rejected the May 29 offer. As discussed above, plaintiff's letter is an attempt to further negotiate the terms of his employment or reinstatement. The letter specifically conditions his agreement on the resolution of certain outstanding employment/reinstatement issues. As such, the June 16 letter was a rejection of defendant's May 29 offer.

Even were we to deem plaintiff's June 16 letter an acceptance, plaintiff received defendant's revocation of the May 29 offer prior to acceptance. Revocation is effective at the moment that the offeree receives it, so long as the offer has not yet been accepted (see Morton's of Chicago/Great Neck v Crab House, 297 AD2d 335, 337 [2002]; Buchbinder Tunick & Co. v Manhattan Natl. Life Ins. Co., 219 AD2d 463, 466 [1995]). Here, the June 12 letter notifying plaintiff of his impending termination, which was sent to plaintiff by overnight mail and received on June 13, constituted a revocation of the offer.

Since plaintiff's promissory estoppel claim was not pleaded as a cause of action in the complaint, the motion court correctly declined to address it (see Moscato v City of New York [Parks Dept.], 183 AD2d 599 [1992]). We have considered plaintiff's remaining contentions and find them unavailing.

Atlantic Aviation Invs. LLC v MatlinPatterson Global Advisers LLC, 2012 NY Slip Op 00840 (1st Dept., 2012)

Under the plain language of the parties' Memorandum of Understanding (MOU) and the embedded Make-Whole Agreement, nonparty VarigLog was an "affiliate" of Volo, an indirect wholly-owned subsidiary of the MP Funds. The sale of the shares at issue was an "Exit," as expressly defined in the MOU. Under the Make-Whole Agreement, Volo and the MP Funds are obligated to ratably share with plaintiff the funds received by VarigLog, Volo's affiliate, in connection with the sale of shares.

We find that the parties' agreements are unambiguous. Thus, there is no need to resort to extrinsic evidence to discern their meaning (see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 278 [2005]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162-163 [1990]). This is so regardless of whether the Make-Whole Agreement is carved out from the MOU's merger clause. Although the parties clearly intended for the Make-Whole Agreement to be an interim arrangement, to be supplanted by a "definitive final agreement" upon the Second Closing, it is nonetheless facially complete and contains all of the essential terms of an enforceable contract.

Randall's Is. Aquatic Leisure, LLC v City of New York, 2012 NY Slip Op 00843 (1st Dept., 2012)

Defendant New York City Economic Development Corporation (EDC) and plaintiffs Aquatic Development Group, Inc. (ADG) and Recreation Development, Inc. (RDI) are not signatories to the "Waterpark Concession Agreement" between plaintiff Randall's Island Aquatic Leisure, LLC (RIAL) and the City (through the Department of Parks and Recreation), which governs this dispute. Thus, ADG and RDI are not proper plaintiffs, and EDC is not a proper defendant, which alone is a sufficient ground on which to dismiss the complaint as against it. There can be no breach of contract claim against a non-signatory to the contract (Nuevo El Barrio Rehabilitación de Vivienda y Economía, Inc. v Moreight Realty Corp., 87 AD3d 465, 467 [2011]). There can be no claim of breach of the implied covenant of good faith and fair dealing without a contract (American-European Art Assoc. v Trend Galleries, 227 AD2d 170, 171 [1996]). And there can be no quasi-contract claim against a third-party non-signatory to a contract that covers the subject matter of the claim (Bellino Schwartz Padob Adv. v Solaris Mktg. Group, 222 AD2d 313, 313 [1995]).

Flusserova v Schnabel, 2012 NY Slip Op 00844 (1st Dept., 2012)

In opposition to defendants' prima facie showing that plaintiff released her claims against them, plaintiff failed to present any evidence that the release she signed was not "fairly and knowingly made" (see Johnson v Lebanese Am. Univ., 84 AD3d 427, 430 [2011] [internal quotation marks and citations omitted]). Plaintiff's claims that as a Czech immigrant with limited English she was taken advantage of by defendants lack merit in any event. According to her own testimony, taken in English in the absence of an interpreter, English is only one of several languages plaintiff speaks; she has written college-level papers in English, translated English for Czech speakers, and communicated with her coworkers and her boyfriend in English. In addition, plaintiff testified that she read the release and did not understand it, but she made no [*2]effort to have someone read and explain it to her before signing it (see Shklovskiy v Khan, 273 AD2d 371 [2000]). Accordingly, her claim that she believed she was signing a receipt for the money she was paid does not avail her.

McFarland v Opera Owners, Inc., 2012 NY Slip Op 00729 (1st Dept., 2012)

The court properly dismissed the fraud claim as barred by the merger clause, "as is" clause, and other disclaimers (see Rivietz v Wolohojian, 38 AD3d 301 [2007]). Moreover, plaintiffs' allegations of defendant's intent to breach the contract are insufficient to state a cause of action for fraud (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]; Board of Mgrs. of the Chelsea 19 Condominium v Chelsea 19 Assoc., 73 AD3d 581, 582 [2010]).

Movado Group, Inc. v Mozaffarian, 2012 NY Slip Op 00732 (1st Dept., 2012)

Defendants signed a credit agreement in which they expressly acknowledged receipt of, and agreed to be bound by, terms and conditions contained in an extrinsic document, which defendants neither read nor requested a copy to read. After the credit application was approved, defendants saw, for the first time, the terms and conditions, which contained a New York forum selection clause.

Plaintiff proved by a preponderance of the evidence (see Matter of Pickman Brokerage [Bevona], 184 AD2d 226, 226-227 [1992]), that the terms and conditions of the extrinsic document were incorporated into the credit agreement, and that defendants' acknowledged receipt and agreed to be bound by the same. The credit agreement, which identified the terms and conditions as those contained on each invoice, was sufficient to put defendants on notice that there was an additional document of legal import to the contract they were executing (see Shark Information Servs. Corp. v Crum & Forster Commercial Ins., 222 AD2d 251, 252 [1995]; see also American Dredging Co. v Plaza Petroleum, 799 F Supp 1335, 1338 [ED NY 1992], vacated in part on other grounds, 845 F Supp 91 [ED NY 1993]). Defendants' decision not to inquire as to the terms and conditions is one by which they are bound (see Sorenson v Bridge Capital Corp., 52 AD3d 265, 266 [2008], lv dismissed 12 NY3d 748 [2009]; see also Hotel 71 Mezz Lender LLC v Falor, 64 AD3d 430, 430 [2009] [a signer's duty to read and understand that which he signs is not "diminished merely because []he was provided with only a [portion of that document]").

The parties' dispute is not, as found by the lower court, governed by UCC 2-207(1)-(2)(b), which provides that, between merchants, where there is an "expression of acceptance or a written confirmation . . . [even if it] states terms additional to or different from those offered or agreed upon . . . [the additional or different terms] become part of the contract unless . . . they materially alter it" (id.). Here, the forum selection clause was not an "additional [*2]or different term" added to the contract, nor was it a confirmatory writing; rather, it was one of the terms and conditions incorporated by reference into the contract at its inception (see Guerra v Astoria Generating Co., L.P., 8 AD3d 617, 618 [2004]). Neither of the issues generally decided pursuant to UCC 2-207 are at issue here (see e.g. K.I.C. Chems., Inc. v ADCO Chem. Co., 1996 US Dist LEXIS 3244, at *10 [SD NY 1996] ["a classic battle of the forms'"]; Hugo Boss Fashions v Sam's Eur. Tailoring, 293 AD2d 296, 297 [2002] [a written alteration to an oral agreement]).

Cari, LLC v 415 Greenwich Fee Owner, LLC, 2012 NY Slip Op 00652 (1st Dept., 2012)

The contracts' termination provision provided that plaintiff could cancel the agreement for any reason and obtain the return of its deposit with interest, so long as it provided written notice to defendant sponsor no later than 10 days before closing. The court correctly determined that the termination provision rendered the contracts unenforceable for lack of mutual consideration (see Dorman v Cohen, 66 AD2d 411, 415, 418 [1979]). The obligation to provide written notice of termination does not constitute consideration where, as here, termination occurs immediately upon notice, and not after some specified period of time (see Allen v WestPoint-Pepperell, Inc., 1996 WL 2004, *3 n 5, 1996 US Dist LEXIS 6, *8 n 5 [SD NY 1996]; cf. Dorman, 66 AD2d at 419, citing McCall Co. v Wright, 133 App Div 62, 68 [1909], affd 198 NY 143 [1910]). The termination provision is enforceable and cannot be severed, even though it renders the contracts void (see Ying-Qi Yang v Shew-Foo Chin, 42 AD3d 320 [2007], lv denied 9 NY3d 812 [2007]). Plaintiff's promissory estoppel claim fails because it does not allege "a duty independent of the [contracts]" (Celle v Barclays Bank P.L.C., 48 AD3d 301, 303 [2008]).

The court properly denied leave to file a second amended complaint, where the proposed amendment "suffers from the same fatal deficiency as the original claims" — namely, the lack of [*2]mutual consideration ("J. Doe No. 1" v CBS Broadcasting Inc., 24 AD3d 215, 216 [2005]).

Matter of Matter of Rivera v Amica Mut. Ins. Co., 2012 NY Slip Op 00472 (1st Dept., 2012)

In Butler v New York Cent. Mut. Fire Ins. Co. (274 AD2d 924 [2000]), the Third Department held that whether the term "insured," as used in an identical Condition 6 of the SUM Endorsement, "refers to each independent insured" or "a cumulative grouping of all who qualify as insureds" was ambiguous, and should be construed against the insurer (id. at 925-26). However, in this case, Condition 6 cannot be viewed as ambiguous because such provision refers to "[t]he SUM limit shown on the Declarations," and the Declarations clearly set forth a "per accident" limit (see Matter of Automobile Ins. Co. Of Hartford v Ray, 51 AD3d 788, 790 [2008]; Matter of Government Empls. Ins. Co. v Young, 39 AD3d 751, 752-53 [2007]; Matter of Graphic Arts Mut. Ins. Co. [Dunham], 303 AD2d 1038, 1038-39 [2003]). Petitioners' piecemeal view of Condition 6 runs afoul of the principle that "[w]hen interpreting a contract, we must consider the entire writing and not view particular words in isolation" (Wachter v Kim, 82 AD3d 658, 661 [2011]).

Matter of Matter of Allstate Ins. Co. v LeGrand, 2012 NY Slip Op 00242 (1st Dept., 2012)

The failure to move to stay arbitration within the 20-day period specified in CPLR 7503(c) generally "constitutes a bar to judicial intrusion into arbitration proceedings" (Aetna Life & Cas. Co. v Stekardis, 34 NY2d 182, 184 [1974]; see Matter of Spychalski [Continental Ins. Cos.], 45 NY2d 847 [1978]). However, a motion to stay arbitration may be entertained outside the 20-day period when "its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with" (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 266 [1982]).

It is undisputed that the subject accident occurred while the insured was driving a rental car in Mexico. The insured's automobile insurance policy provided benefits for accidents that occurred within the State of New York, "the United States, its territories or possessions, or Canada." Since the policy did not provide for coverage in the geographic area where the accident occurred, it cannot be said that the parties ever agreed to arbitrate this claim (see Matter of Allstate Ins. Co. (Richards), 178 AD2d 142 [1991], lv denied 79 NY2d 756 [1992]; cf. Matter of Fiveco, Inc. v Haber, 11 NY3d 140 [2008]).

Thor Props., LLC v Chetrit Group LLC, 2012 NY Slip Op 00112 (1st Dept., 2012)

In this lawsuit, plaintiff claims that it is entitled to the third payment of $6.25 million, because Komar willfully failed to close thereby causing the failure of the condition precedent and consequently depriving plaintiff of its right to the final payment. Plaintiff cites the "prevention" or "hindrance" doctrine whereby a "defendant cannot rely on the condition precedent to prevent recovery where the non-performance of the condition was caused or consented to by itself" (O'Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50, 56 [1939]; see also Arc Elec. Constr. Co. v Fuller Co., 24 NY2d 99, 103-04 [1969]). However, the prevention doctrine, a variant of the implied covenant of good faith and fair dealing, is only applicable when it is consistent with the intent of the parties to the agreement (see HGCD Retail Servs., LLC v 44-45 Broadway Realty Co., 37 AD3d 43, 53 [2006]). Here, the parties' settlement agreement clearly provided that the first payment was completely nonrefundable, the second payment was refundable if title failed to close through no fault of Komar, and plaintiff only became entitled to the third payment if title closed or an assignment occurred. Neither happened. Accordingly, plaintiff never became entitled to the third payment.

Plaintiff's argument that the parties incorporated the language concerning Komar's purposeful default from section B(i) into section B(ii) governing the third payment is contrary to the terms of the agreement. The parties clearly were capable of expressing the circumstances under which the right to payment vested. Had the parties meant to entitle plaintiff to the funds discussed in section B(ii) upon Komar's default, they certainly were capable of crafting language to that effect.

In addition, plaintiff argues that, regardless of the language in the settlement agreement, under the prevention doctrine, defendant cannot rely on the failure to close as an excuse not to [*3]pay plaintiff, because defendant is responsible for that failure. This argument misses the mark. By leaving out the words "except if title fails to close for any reason other than Komar's default" from section B(ii), the parties in essence contracted around the prevention doctrine. Thus, the parties considered the possibility of default and accorded liability (to defendants) for only one half of the $12.5 million. Imposition of the prevention doctrine to award the full $12.5 million to plaintiff would be inconsistent with a plain reading of the agreement.

The motion court also properly dismissed defendants' counterclaim for rescission of contract based on mutual mistake. To void a contract for mistake, the mistake must be mutual, substantial and must exist at the time the parties enter into the contract (see 260/261 Madison Equities Corp. v 260 Operating, 281 AD2d 237 [2001]). This Court previously found that there was neither a prior agreement with the relevant municipality limiting development, nor any guarantee that development would be permitted (Diplomat Props., 72 AD3d 596). Because it was always uncertain whether the City would permit or deny further development of the property, any assumption about the ability to develop property could not have existed at the time the parties entered into the agreement.

A party will not be relieved of its contractual obligations on the basis of an intervening contingency when it would have been reasonable to provide for such contingency in the contract (see Kel Kim Corp. v Central Mkts., 70 NY2d 900 [1987]; P.K. Dev. v Elvem Dev. Corp., 226 AD2d 200 [1996]). The ability to secure favorable zoning rulings is a well known risk in any property development project, and if expansion of the property was the key to profitability, as defendants claim, they should have explicitly handled that contingency in the settlement agreement.

Options Group, Inc. v Vyas, 2012 NY Slip Op 00038 (1st Dept., 2012)

The record evidence establishes definitively that the June 8, 2009 e-mail that plaintiff contends was defendant's acceptance of its settlement offer did not result in a preliminary agreement that embodied all the essential terms of the agreement between the parties (see Williamson v Delsener, 59 AD3d 291 [2009]). In any event, this alleged settlement agreement was superseded by a formal settlement agreement drafted by plaintiff and signed by defendant, which contained additional terms and specifically provided that it cancelled all preceding agreements (see e.g. Olivo v The City of New York, 2010 WL 3200073, 2010 US Dist LEXIS 81951 [SD NY 2010]). Even if plaintiff never formally executed the settlement agreement it [*2]proffered to defendant, the record demonstrates that both parties intended to be bound by the agreement, and it is therefore enforceable (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369 [2005]; Kowalchuk v Stroup, 61 AD3d 118, 125 [2009]).

Ayers v Ayers, 2012 NY Slip Op 00920 (2nd Dept, 2012)

A stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation (see Rainbow v Swisher, 72 NY2d 106; De Luca v De Luca, 300 AD2d 342; Girardin v Girardin, 281 AD2d 457). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v Slatt, 64 NY2d 966; see also De Luca v De Luca, 300 AD2d at 342). A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning (see Cohen-Davidson v Davidson, 291 AD2d 474, 475). Whether a writing is ambiguous is a matter of law for the court, and the proper inquiry is " whether the agreement on its face is reasonably susceptible of more than one interpretation'" (Clark v Clark, 33 AD3d 836, 837, quoting Chimart Assoc. v Paul, 66 NY2d 570, 573). In making this determination, the court also should examine the entire contract and consider the relation of the parties and the circumstances under which the contract was executed (see Clark v Clark, 33 AD3d at 837-838). Applying these principles herein, it is clear that the parties did not intend for child support payments to be included as part of "income and assets." Indeed, there is no language in the Stipulation which supports the defendant's determination that child support payments should be added to the plaintiff's income and deducted from his income. Nor can the plaintiff's alleged overpayments be deemed voluntary (cf. Matter of Hang Kwok v Xiao Yan Zhang, 35 AD3d 467).

Maser Consulting, P.A. v Viola Park Realty, LLC, 2012 NY Slip Op 00498 (2nd Dept., 2012)

"The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent" (Greenfield v Philles Records, 98 NY2d 562, 569). "Where . . . the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" (Rainbow v Swisher, 72 NY2d 106, 109; see Beal Sav. Bank v Sommer, 8 NY3d 318, 324; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475; Etzion v Etzion, 84 AD3d 1015, 1017). "The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court" (Franklin Apt. Assoc., Inc. v Westbrook Tenants Corp., 43 AD3d 860, 861). "The court's role is limited to interpretation and enforcement of the terms agreed to by the parties, and the court may not rewrite the contract or impose additional terms which the parties failed to insert" (131 Heartland Blvd. Corp. v C.J. Jon Corp., 82 AD3d 1188, 1189; see Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173, 182). Extrinsic evidence will be considered [*2]only if the contract is deemed ambiguous (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 163; Quality King Distrib., Inc. v E & M ESR, Inc., 36 AD3d 780, 782).

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