15 A.D.2d 762 | N.Y. App. Div. | 1962
Lead Opinion
As very adequately pointed out by the learned Justice at Special Term (see 30 Misc 2d 852), the letter from plaintiff’s attorney, dated January 27, 1960, was not a clear and unqualified acceptance of the prior written offer made to her. Rather, the letter appears to have been carefully worded by the plaintiff's attorney so that he would later be able to say that there were matters not yet fully agreed upon, and, thus be in a position to claim that the plaintiff was not bound to a contract. In any event, under the circumstances here, it does not appear that there was a meeting of the minds on the terms of a contract, and, thus, a binding contract was not formed. In support of her claim that a bind in a:
Dissenting Opinion
dissents in the following dissenting memorandum; The complaint was dismissed upon findings that plaintiff was not entitled to specific performance because she had failed to establish the existence of a binding contract, and that no conspiracy to deprive plaintiff of an opportunity to purchase the apartment occupied by her had been proven. Specifically, plaintiff’s cause of action for declaratory judgment was dismissed because she had an appropriate remedy by review, when, and if, a certificate of eviction was applied for and issued by the Rent Commissioner, . In the decision rendered by the learned Trial Justice (reported in 30 Mise 2d 855), the dismissal of the cause of action for specific performance is based upon the conclusion that plaintiff’s letter of January 27, 1960 — on which she predicates her claim of acceptance of the owner’s offer to sell her the apartment on an “as is” basis—was not an unqualified acceptance but contained such conditions and reservations as to constitute it a counteroffer. However, the decision fails to mention, and thus gives no effect to, the fact that at a meeting of the board of trustees of the owner corporation, on March 15, I960—when plaintiff’s letter of January 27, 1960 evidently was under discussion — it