May v. Wilcox

182 A.D.2d 939, 582 N.Y.S.2d 294, 1992 N.Y. App. Div. LEXIS 5662

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1992
• Status: Published

Opinion

Appeal from an order of the Supreme Court (Ellison, J.), entered May 30, 1991 in Tompkins County, which granted defendant William R. Wilcox’s motion for summary judgment dismissing the complaint.

Supreme Court properly dismissed plaintiffs’ complaint on the ground that there was not an enforceable contract between the parties. In order to create a binding contract there must be a meeting of the minds as to the essential terms of the agreement (see, Kentucky Fried Chicken v Rockland Lease Funding Corp., 173 AD2d 1066). In this case, the purchase offer stated that the conveyance was to include all "built in items” and "all other items of equipment and personal property attached to the buildings”. As evidenced, however, by the ongoing correspondence between the parties’ attorneys as well as the parties’ discussions, there was no meeting of the minds with respect to the status of the commercial fixtures and property such as the printing press, public address system and fire extinguishers. Furthermore, the acceptance of the purchase offer was conditioned on the changes added to the agreement and thus constituted a counteroffer requiring plaintiffs’ acceptance (see, Chain Locations v T.I.M.E.-DC, 81 AD2d 993). Plaintiffs never initialed the changes on the agreement to indicate their acceptance. Under these circumstances, the writings in question failed to create a binding contract and Supreme Court’s award of summary judgment in favor of defendants must be upheld (see, Blakey v McMurray, 110 AD2d 998).

Mikoll, J. P., Yesawich Jr., Mercure, Mahoney and Harvey, JJ., concur. Ordered that the order is affirmed, with one bill of costs.