Galesi v Galesi

Galesi v Galesi 2007 NY Slip Op 01221 [37 AD3d 249] February 13, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

Michael Galesi et al., Appellants,
v
Francesco Galesi et al., Respondents, et al., Defendants.

—[*1] Bressler, Amery & Ross, P.C., New York (David H. Pikus of counsel), for appellants. Menaker & Herrmann LLP, New York (Richard G. Menaker of counsel), for respondents.

Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered December 8, 2005, dismissing the complaint as against defendants Galesi and Elysium Energy, LLC, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered November 22, 2005, which granted defendants-respondents' summary judgment motion, unanimously dismissed, without costs.

Assuming that the alleged promise was made, it amounted to no more than an indefinite and unenforceable "agreement to agree" (see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91 [1991]). Although plaintiffs presented evidence that the negotiating parties had agreed as to price and quantity, the exchange of drafts, further discussion, and the totality of the circumstances clearly showed that there was never a meeting of the minds on all essential terms (see Ross v Wu, 27 AD3d 237 [2006], lv denied 7 NY3d 713 [2006]). Furthermore, judicial estoppel would bar recognition and enforcement of any such promise. Concur—Tom, J.P., Sullivan, Nardelli and Gonzalez, JJ. [See 12 Misc 3d 1186(A), 2005 NY Slip Op 52310(U) (2005).]