Opinion
Index No. 656640/19 14315 Case No.2020–04636
10-07-2021
Antonio VENDOME, Plaintiff–Appellant, v. Claes T. OLDENBURG, et al., Defendants–Respondents.
Olshan Frome Wolosky, New York (Tara Richelo of counsel), for appellant. Wichler & Gobetz, P.C., Suffern (Kenneth C. Gobetz of counsel), for respondents.
Olshan Frome Wolosky, New York (Tara Richelo of counsel), for appellant.
Wichler & Gobetz, P.C., Suffern (Kenneth C. Gobetz of counsel), for respondents.
Manzanet–Daniels, J.P., Mazzarelli, Moulton, Gonza´lez, Pitt, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about May 27, 2020, which granted defendants’ motion to dismiss the complaint and cancelled the notice of pendency, unanimously affirmed, with costs.
The covenant of good faith and fair dealing "cannot negate express provisions of the agreement" ( Transit Funding Assoc., LLC v. Capital One Equip. Fin. Corp., 149 A.D.3d 23, 29, 48 N.Y.S.3d 110 [1st Dept. 2017] ). Here, defendants’ actions were expressly permitted by Paragraph 12 of the Letter of Intent (the LOI), which gave them the right not to agree to a definitive sale contract "for any reason whatsoever or no reason at all." Where the express terms of a contract allow one party to terminate it in "its sole discretion" or "for any reason whatsoever," the covenant of good faith and fair dealing cannot serve to negate that provision ( id. [internal quotation marks omitted]).
Plaintiff's argument that the LOI effectively amounted to an enforceable purchase agreement when it is considered in tandem with defendants’ post-LOI conduct also fails. The statute of frauds requires that contracts for the sale of real property be accompanied by a signed writing and that no contract for the sale of real property can be created when a material element of the contemplated bargain bas been left for further negotiations (see Generas v. Hotel des Artistes, Inc., 117 A.D.2d 563, 566, 499 N.Y.S.2d 69 [1st Dept. 1986], lv denied 68 N.Y.2d 606, 506 N.Y.S.2d 1030, 498 N.E.2d 150 [1986] ; General Obligations Law § 5–703[2] ). Furthermore, the LOI was expressly conditioned upon the execution of a definitive contract of sale, which does not give rise to an enforceable purchase agreement (see Scheck v. Francis, 26 N.Y.2d 466, 470, 311 N.Y.S.2d 841, 260 N.E.2d 493 [1970] ).
Plaintiff's fraudulent inducement claim also fails. "[A] party claiming fraudulent inducement cannot be said to have justifiably relied on a representation when that very representation is negated by the terms of the contract executed by the allegedly defrauded party" ( Perrotti v. Becker, Glynn, Melamed & Muffly LLP, 82 A.D.3d 495, 498, 918 N.Y.S.2d 423 [1st Dept. 2011] ). Particularly in light of Paragraph 12 of the LOI, any reliance on defendants’ alleged representation that they would subsequently enter into a definitive agreement was unreasonable as a matter of law ( GE Oil & Gas, Inc. v. Turbine Generation Servs., L.L.C., 168 A.D.3d 563, 564, 93 N.Y.S.3d 5 [1st Dept. 2019] ).