stating that material terms must be definite, but that “[a] contract does not necessarily lack all effect merely because it expresses the idea that something is left to future agreement”
How later courts described this case
- stating that material terms must be definite, but that “[a] contract does not necessarily lack all effect merely because it expresses the idea that something is left to future agreement”
- “Being essentially factual in nature, proof bearing upon the question of contractual intent should not be considered by the court prior to joinder of issue unless ... the court gives notice of its intention to give the case summary judgment treatment.”
- reference to commercial practice or usage and custom may be had to determine meaning of non-essential term
- “This means that the manifestation of a party’s intention rather than the actual or real intention is ordinarily controlling, for a contract is an obligation attached, by the mere force of law, to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent.”
Written by the judges who cited it.
The opinion
Kupferman, J. P.
(dissenting). I would affirm for the reasons stated at Special Term.
We are familiar with the background of this matter involving the operation of the Pierre Hotel, a cooperative housing corporation. (See, Vinnik v 795 Fifth Ave. Corp., 94 AD2d 685, affd 62 NY2d 698 .)
I see no great need to differ with the Second Department on the question of whether there must be notice by the court to obtain CPLR 3211 (c) treatment. (See, Reed v Shoratlantic Dev. Co., 121 AD2d 525 .) Notice by one of the parties should be sufficient. There should be uniformity in the approach to this procedural matter to avoid confusion at the Bar. Moreover, it would also seem that the Second Department has a better view of this aspect.
Carro, Kassal and Ellerin, JJ., concur with Wallach, J.; Kupferman, J. P., dissents in an opinion.
Order, Supreme Court, New York County, entered on April 28, 1986, modified, on the law, to deny plaintiffs’ cross motion for summary judgment, and otherwise affirmed, without costs and without disbursements. The appeal from the order entered on October 15, 1986 be, and the same hereby is, unanimously dismissed, without costs and without disbursement.