In Leist v. JMC Pharmacy Inc., 2018 NY Slip Op 04974 (App. Div. 1st Dept. July 5, 2018), the court unanimously affirmed the dismissal of plaintiff’s claim for breach of contract.
From the decision/order:
There is no written contract, and the documents submitted by plaintiffs in an effort to show a purported meeting of the minds “flatly contradict” their allegations that the parties had come to an agreement on the contract’s material terms (Matter of Sud v Sud , 211 AD2d 423, 424 [1st Dept 1995]; see Joseph Martin, Jr., Delicatessen v Schumacher , 52 NY2d 105, 109 ). The transcribed conversation submitted by plaintiffs to the court demonstrates that the parties were continuing to negotiate the services plaintiffs were to provide and the form that the written agreement between them would take. Given this lack of agreement, there was only an unenforceable agreement to agree between the parties, which is not subject to a breach of contract claim (id. ).
The statute of frauds bars plaintiffs’ claim of breach of the oral commission agreement. The type of agreement alleged here is the very type of agreement that has been held unenforceable under the statute (General Obligations Law § 5-701[a]; Fitz-Gerald v Donaldson, Lufkin & Jenrette, Inc. , 294 AD2d 176 [1st Dept 2002]). The agreement was also void because it was not in writing and was not capable of being performed within one year, as the performance of the contract was dependent upon the will of third parties[.]