Porter v. Bryant

Dec 14, 1998
Versions:256 A.D.2d 395
681 N.Y.S.2d 582
1998 N.Y. App. Div. LEXIS 13417

—In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Murphy, J.), dated September 29, 1997, as granted that branch of the defendants’ motion which was to dismiss the third cause of action alleging breach of contract.

Ordered that the order is reversed insofar as appealed from; with costs, that branch of the defendant’s motion which was to dismiss the third cause of action is denied, and the third cause of action is reinstated.

The Supreme Court found that the plaintiff K.P. Home Builders, Inc., was barred from enforcing the subject custom home construction contract because the contract did not include certain information required by General Business Law § 771. However, upon our review of the contract, we find that there was clearly a meeting of the minds between the parties, and that none of the alleged omissions from the written agreement caused the defendants to enter into the contract or were relevant to their stated reasons for terminating the plaintiffs services. Under these circumstances, the contract is not per se unenforceable and plaintiffs should not be precluded from the opportunity to establish the merit of their cause of action predicated upon breach of contract (see, Wowaka & Sons v Pardell, 242 AD2d 1; cf., Mindich Developers v Milstein, 227 AD2d 536). Rosenblatt, J. P., Santucci, Altman and Friedmann, JJ., concur.