Tringle v. Tringle , 835 N.Y.S.2d 560 ( 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.

Plaintiffs 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 [2004]). 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, plaintiffs 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 [1999]).

We have considered and rejected plaintiffs other arguments. Concur—Tom, J.P., Friedman, Sullivan, Buckley and Kavanagh, JJ.