agreement to agree is not to agree at all

Michael H. Spector, AIA, P.C. v Billy Smith's Sport Ctr., Inc., 2012 NY Slip Op 03610 (2nd Dept., 2012)

Contrary to the plaintiff's contention, there is no valid line of reasoning or permissible inferences that could lead a rational person to the conclusion reached by the jury with respect to the causes of action to recover damages for beach of contract or to recover on an account stated. With respect to the cause of action alleging breach of contract, the evidence adduced at trial demonstrated that the parties had a mere agreement to agree, which is insufficient to bind either party (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109-110; Maffea v Ippolito, 247 AD2d 366, 367). With respect to the cause of action to recover on an account stated, the parties did not agree on a price that the individual defendants would pay for the plaintiff's services, and the plaintiff thus failed to establish a requisite element for recovery on a theory of account stated (see Heelan Realty & Dev. Corp.v Ocskasy, 27 AD3d 620). Accordingly, the Supreme Court properly granted those branches of the individual defendants' motion which were pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law dismissing the causes of action alleging breach of contract and to recover on an account stated insofar as asserted against them.

JMF Consulting Group II, Inc. v Beverage Mktg. USA, Inc., 2012 NY Slip Op 05392 (2nd Dept. 2012)

JMF and Ferolito established, prima facie, that the alleged oral agreement was too indefinite to be enforceable and was merely an agreement to agree (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105; Mellen & Jayne, Inc. v AIM Promotions, Inc., 33 AD3d 676, 677-678; Flanel v Flanel, 152 AD2d 536, 536-537). Moreover, since the terms of each loan were set out in writing in each of the separate promissory notes executed by BMU, BMU was precluded from establishing the existence of an enforceable oral agreement by relying on parole evidence that contradicted the express terms of those notes (see Marine Midland Bank-S. v Thurlow, 53 NY2d 381, 387; Dong Won Kim v Frank H. Truck Corp., 81 AD3d 586, 587; Friends of Avalon Preparatory School v Ehrenfeld, 6 AD3d 658, 658-659). Since BMU failed to raise a triable issue of fact in response to the prima facie showing of JMF and Ferolito, those branches of the motion of JMF and Ferolito which were for summary judgment dismissing the first counterclaim and the first cause of action in the third-party complaint should have been granted.

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