EDP Medical Computer Systems Inc. v. Sears, Roebuck & Co.EDP Medical Computer Systems Inc. v. Sears, Roebuck & Co.
In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Graci, J.), dated October 30, 1987, which denied the plaintiff’s motion to dismiss the defendant’s defense of the Statute of Frauds and granted the defеndant’s cross motion for severance and summary judgment in its favor upon thе plaintiff’s third cause of action and so much of its fourth cause of аction as relies on any claimed oral agreements.
Ordered that the order is affirmed, with costs.
In June 1, 1979, a liсense agreement was entered into between Sears, Roebuсk and Co. (hereinafter Sears) and EDP Medical Computer Systems, Inc. (herеinafter EDP), whereby Sears licensed EDP to conduct and operate "Sears Subscription Service” for the purpose of offering magazine subscrip
On or about March of 1980 while the agrеement was still in effect, the parties began to discuss the possibility of a new agreement whereby EDP would perform the same services for Sеars, but on a nationwide level. On May 8, 1980, Bernard Gelb, the president of EDP wrotе to Richard Prugh, the National Marketing Manager of Sears’ Concessions Department, asking for a finalization of the parties’ understanding as tо the nationwide license. On May 20, 1980, Prugh, in response, wrote to Gelb conсerning the new agreement and outlined some of the terms. There was muсh correspondence before and after the letter datеd May 20, 1980, all indicating that a formal agreement was to be signed. In a letter dated September 23,1980, John Wurmlinger, the National Merchandise Managеr of Sears’ Concessions Department, informed Gelb that Sears was dissatisfied with EDP’s performance and that consequently it did not intend to extend thе terms of the current license or authorize any additional magazine promotions. No claims were made at that time by either party that a new agreement had been reached.
In April 1982 EDP sued Sears for dаmages for breach of contract alleging, inter alia, that the May 20, 1980 letter from Prugh satisfied the Statute of Frauds and was enforceable as a written mеmorialization of their oral agreement. Sears interposed the defense of the Statute of Frauds in its answer to EDP’s complaint. EDP moved to dismiss that defense, and Sears cross-moved for summary judgment on the ground that the parties had never intended to be bound to any oral agreemеnt unless and until such agreement had been reduced to writing and signed by both pаrties.
The Supreme Court granted Sears’ cross motion stating that the correspondence between the parties led to the conclusion that "as a matter of law,” the parties did not intend to be bound befоre the signing of a written agreement. We agree, and affirm the order appealed from.
It is well settled that "if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed” (Scheck v Francis,
We hаve examined the plaintiffs other contentions and find them to be without merit. Rubin, J. P., Kooper, Sullivan and Balletta, JJ., concur.