Kravet & Vogel, P.C. (Mischel & Horn, P.C., New York,
NY [Scott T. Horn], of counsel), for appellant.
Tauber Spievack & Wagner, P.C., New York, NY (Kenneth J.
Rubinstein of counsel), for respondent Metroeb Realty 1, LLC.
& Associates PLLC, New York, NY (Jonathan D. Lupkin of
counsel), for respondent RedSky Capital, LLC.
WILLIAM F. MASTRO, J.P. RUTH C. BALKIN FRANCESCA E. CONNOLLY
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
action to recover damages for breach of contract, for
specific performance of a contract for the sale of real
property, and for declaratory relief, the plaintiff appeals,
as limited by its brief, from so much of a judgment of the
Supreme Court, Kings County (Lawrence Knipel, J.), dated June
6, 2014, as, upon a decision of the same court (Ann T. Pfau,
J.), dated May 6, 2014, made after a nonjury trial, dismissed
the complaint and declared that a contract executed on May 4,
2012, between the plaintiff and the defendant Metroeb Realty
1, LLC, for the sale of the subject real property is not
valid and enforceable.
that the judgment is reversed insofar as appealed from, on
the law, on the facts, and in the exercise of discretion,
with one bill of costs, the complaint is reinstated, and the
matter is remitted to the Supreme Court, Kings County, for
further proceedings to determine what remedy is available to
the plaintiff, and thereafter, for the entry of an amended
judgment, inter alia, declaring that the contract executed on
May 4, 2012, between the plaintiff and the defendant Metroeb
Realty 1, LLC, for the sale of the subject real property is
valid and enforceable.
October 22, 2012, the plaintiff commenced this action against
the defendant Metroeb Realty 1, LLC (hereinafter Metroeb).
The plaintiff sought to recover damages for breach of
contract, specific performance of a contract for the sale of
real property, and declaratory relief. The plaintiff alleged
that on May 4, 2012, the parties entered into a contract in
which Metroeb agreed to sell the subject property to the
plaintiff for the sum of $30 million, but that Metroeb
thereafter entered into a contract to sell the property to a
different purchaser. Metroeb counterclaimed for a declaration
that the purported contract was not valid and enforceable.
RedSky Capital, LLC (hereinafter RedSky), which entered into
the subsequent contract to purchase the property, intervened
in the action as a defendant, asserting, inter alia, a
counterclaim against the plaintiff for a declaration that the
plaintiff's purported contract with Metroeb is not valid
and enforceable. The action proceeded to a nonjury trial.
evidence at trial established that on May 3, 2012, following
various negotiations regarding the sale of the property, Sam
Sprei, acting as agent of the plaintiff, presented a contract
of sale for the purchase of the property to Metroeb's
principal, Aaron Berger. The contract bore the indicia of a
formal contract for the sale of real property in that it was,
inter alia, 22 pages long and annexed numerous schedules,
including the metes and bounds description for the property,
an agreement for the assignment of leases and security
deposits for existing tenants, and a survey of the property.
Additionally, the contract was signed by the plaintiff's
principal, Isaac Jacobowitz, on behalf of the plaintiff.
Sprei also gave Berger two down payment checks from the
plaintiff totaling $3 million, the required down payment
under the terms of the contract. Berger retained the checks,
but never presented them for payment. On May 4, 2012, Sprei
and Berger met at Berger's office and negotiated and made
numerous handwritten changes to the contract. Each change was
initialed by Berger and Sprei. Further, each page of the
contract was initialed at the bottom by Berger and Sprei, and
Berger signed the contract on the signature line as president
contract provided that the closing would take place on July
9, 2013, with time being of the essence. Berger testified
that it was his understanding that the contract would be sent
to an attorney to be put in "proper form, " and
then signed. On May 7, 2012, a copy of a $3 million certified
check intended to replace the two prior checks was emailed to
Berger. However, this check was never delivered to Berger and
was later redeposited by Jacobowitz into his account. After
the signing of the contract, Jacobowitz and Berger continued
to negotiate aspects of the sale, but the parties never
agreed to the changes or signed a new contract.
8, 2012, four days after signing the contract to sell the
property to the plaintiff, Berger received an offer from
RedSky to purchase the property for $32 million. On July 20,
2012, Metroeb and RedSky entered into a contract of sale for
the property with a purchase price of $32.5 million. Notably,
after the contract with RedSky was signed, Berger continued
to negotiate and meet with Jacobowitz, to whom he sent copies
of leases and plans for the building on May 17, 2012. During
this period of time, the plaintiff arranged for $20 million
in financing through a lender. Jacobowitz testified that the
balance of the purchase price would be funded through the
plaintiff's cash holdings.
August 20, 2012, Berger tendered to the plaintiff a proposed
agreement for the "Termination of Contract of Sale,
" dated July 26, 2012, which the plaintiff did not sign.
On August 20, 2012, Berger contacted Chase Bank and was
informed that the plaintiff's down payment checks were
"not good at present." By letter dated August 21,
2012, Metroeb informed the plaintiff that it was cancelling
the contract because the account on which the checks were
drawn did not contain sufficient funds. Jacobowitz testified
that the funds had been moved from that checking account to
an interest-bearing account, and that sufficient funds would
be transferred to the account to cover the checks when they
were presented for payment. Jacobowitz testified that as of
"the intended closing date under the contract, "
the plaintiff had the funds to close and was ready, willing,
and able to perform.
decision after trial dated May 6, 2014, the Supreme Court
determined that the plaintiff and Metroeb had not come to a
meeting of the minds on May 4, 2012, which the court found
was evidenced by Berger and Jacobowitz's continuing
negotiations after that date. Accordingly, by judgment dated
June 6, 2014, the Supreme Court, inter alia, dismissed the
complaint and declared that the May 4, 2012, contract between
the plaintiff and Metroeb was not valid and enforceable.
Further, the judgment directed that Metroeb shall convey the
property to RedSky within 90 days. The plaintiff appeals from
stated portions of the judgment, and we reverse the judgment
insofar as appealed from.
reviewing a determination rendered after a nonjury trial, the
power of this Court is as broad as that of the trial court,
and this Court may render the judgment it finds warranted by
the facts, taking into account that in a close case the trial
court had the advantage of seeing the witnesses and hearing
the testimony" (Palombo Group v Poughkeepsie City
Sch. Dist., 125 A.D.3d 620, 621 [internal quotation
marks omitted]; see Northern Westchester Professional
Park Assoc. v Town of Bedford, 60 N.Y.2d 492, 499).
to the Supreme Court's determination, a complete and
enforceable contract was formed on May 4, 2012, when Berger
executed the contract of sale agreeing to sell the property
to the plaintiff. "[C]ourts look to the basic elements
of the offer and the acceptance to determine whether there is
an objective meeting of the minds sufficient to give rise to
a binding and enforceable contract" (Matter of
Express Indus. & Term. Corp. v New York State Dept. of
Transp.,93 N.Y.2d 584, 589). Although Berger testified
that he expected that a final contract would be signed after
it had been put in "proper form" by an attorney,
"the existence of a binding contract is not dependent on
the subjective intent of [the parties]" (Brown Bros.
Elec. Contrs. v Beam Constr. Corp.,41 N.Y.2d 397, 399).
"In determining whether the parties entered into a
contractual agreement and what were its terms, it is
necessary to look, rather, to the objective manifestations of
the intent of the parties as gathered by their expressed
words and deeds" (id. at 399). Notably, the May
4, 2012, contract contains all of the essential terms of a
contract for the sale of real property, designated the
parties, and identified and described the subject matter of
the contract (see Piller v Marsam Realty 13th Ave.,
LLC,136 A.D.3d 773, 774). The contract was signed by
Berger and Jacobowitz, and all changes to the contract were
initialed by Sprei, who was acting as agent for the
plaintiff, and Berger. Moreover, the contract contained no
provision indicating that an additional signed agreement
would be necessary to create a binding agreement
(see 1-2 Corbin on Contracts ...