73 A.D.2d 509
N.Y. App. Div.
1979

Order, Supreme Court, New York County, entered January 11, 1979, denying defendant’s motion for summary judgment and dismissal of the plaintiffs complaint, unanimously reversed, on the law, and the motion granted, without costs or disbursements. The parties had been married in 1968. On August 27, 1977, they signed a handwritten document entitled "Preliminary agreement, Marriage settlement,” which contained property disposition and custody provisions. There was a subsequent handwritten addendum purporting to modify the preliminary agreement. It was never signed. Neither party adhered to the terms of the preliminary agreement. Subsequently, both *510plaintiff and defendant retained separate counsel. A separation agreement was drafted but not signed by the parties. The terms of the proposed separation agreement contained provisions significantly different from those of the handwritten document. The plaintiff wife brought this action seeking, inter alia, a declaration that a valid separation agreement exists. The defendant moved at Special Term for dismissal of the complaint on the ground that no contract existed between the parties and that the preliminary agreement was in any event abandoned. Special Term denied the motion, and we would reverse. The preliminary writing sought to be enforced is at best an agreement to agree. All the essential terms were not fully set forth. Even in the wife’s complaint the document is characterized as "referring to certain of the parties’ understandings” (emphasis added). This conclusion is substantially confirmed by the conceded fact that, after the parties retained counsel, a substantially different arrangement was proposed but never agreed upon by the parties. Finally, the preliminary agreement cannot pass muster as a separation agreement, since the parties did not specifically state an intent to live separate and apart. Under these circumstances, the husband was entitled to summary judgment dismissing the complaint. Concur—Sullivan, J. P., Bloom, Lane, Lupiano and Ross, JJ.