Winiarski v. Duryea Associates, LLC

14 A.D.3d 697, 789 N.Y.S.2d 510, 2005 N.Y. App. Div. LEXIS 849

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2005
• Status: Published

Opinion

In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated October 14, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. The documentary evidence submitted by the defendant in support of the motion established that the plaintiff made unilateral modifications to material terms of the proposed contract of sale. These modifications constituted a counteroffer that the defendant expressly rejected (see Kling Real Estate v DePalma, 306 AD2d 445 [2003]; Harper v Rodriguez, 272 AD2d 372 [2000]). Since the parties never came to a meeting of the minds regarding the essential terms of the agreement, there was no binding and enforceable contract for the sale of the real property (see Kling Real Estate v DePalma, supra; Harper v Rodriguez, supra; Levi v Smith, 242 AD2d 564 [1997]; May v Wilcox, 182 AD2d 939 [1992]).

We decline the defendant’s request to impose a sanction upon the plaintiff for pursuing an allegedly frivolous appeal (see 22 NYCRR 130-1.1). S. Miller, J.P., Krausman, Mastro and Fisher, JJ., concur.