Breslin Realty Development Corp. v. Incorporated Village of Freeport

Bracken, J.,

dissents and votes to reverse the order appealed from, with costs, and to deny the motion in the following memorandum in which Kunzeman, J., concurs. There is no basis upon which to grant summary judgment in favor of the defendants. The Statute of Frauds (General Obligations Law § 5-703 [2]) requires only that the "essential” terms of the parties’ agreement be reflected in a written memorandum. The majority recognizes this principle, but holds that at least one essential term has been omitted from the various documents which collectively constitute the "memorandum” at issue in this case. Specifically, the majority holds that the parties’ failure to specify, in writing, the precise content of the restrictive covenants which were to be contained in the deed constitutes the omission of a term which must, as a matter of law, be considered essential. I disagree.

The original bid specified that the purpose of the restrictive covenants at issue would be to limit "the use of the parcel to the uses contained in the proposal to the extent said proposal is approved by the Board of Trustees”. In its written proposal, the plaintiff clearly stated that it would develop and use the property as a "neighborhood shopping center”. This proposal was accepted without any qualification.

In my view, it might well be inferred from the evidence in the present record that in providing as to how the subject property was to be used, the defendants considered it essential only to agree in general terminology that the property would be developed as described in the plaintiff’s bid, that is, as a "neighborhood shopping center”. There is little to warrant the inferencé, much less the holding as a matter of law, that the defendants considered other matters, such as the number of stores, the size of the stores, the type of stores, etc., to be essential. There is, in other words, a distinct issue of fact as to whether the defendants considered it essential to define the prospective use of the property with any degree of specificity greater than that reflected by the term "neighborhood shopping center”. A trier of fact could conclude, with ample justification, that such precision was not intended by the defendants to be essential to the enforceability of the contract (see generally, Guzzo v Easterntech Elecs., 86 AD2d 717 [mixed question of law and fact as to whether term of contract was intended to be "essential”]) and that their insistence on such precision now is a product of their desire to cancel the contract for ulterior reasons.

I believe that all those terms which are properly considered essential to this contract were, in fact, set forth in writing. I see no basis upon which to grant summary judgment to the defendants.