Sagan v. Sagan

| NY | Mar 24, 1981

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by granting judgment on the second cause of action declaring that there is no valid agreement between the parties and, as so modified, the order should be affirmed, with costs to respondent.

The internal material indices of incompleteness in the conditioned so-called “Preliminary Agreement” and the parties’ conceded subsequent unsuccessful efforts to flesh it out together support the conclusion of the Appellate Division that there is no enforceable agreement between the parties. Concordantly, the request for a declaration of rights should have been granted and a declaration made that, since there was no valid agreement between the parties, no rights inured to the plaintiff thereunder (Lanza v Wagner, 11 NY2d 317, 334). There, therefore, was insufficient support for the causes so premised.

Moreover, to the extent that the plaintiff seeks reformation of the writing, her tender of proof in evidentiary form does not rise to the high level required to resist a motion for summary judgment directed against such an action (see Backer Mgt. v Acme Quilting Co., 46 NY2d 211, 219-220).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to respondent, in accordance with the memorandum herein and, as so modified, affirmed,