Zakharova v Raising Rover Ltd.

[*1] Zakharova v Raising Rover Ltd. 2015 NY Slip Op 51397(U) Decided on October 1, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570385/15

Elena Zakharova, Plaintiff-Appellant, -

against

Raising Rover Ltd., Jeffrey Silverstein and Frankie Foronjy, Defendants-Respondents.

Plaintiff, as limited by her brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), dated May 1, 2014, as denied her motion to enforce a settlement and for partial summary judgment on her breach of contract and General Business Law § 753 causes of action.

Per Curiam.

Order (Lynn R. Kotler, J.), dated May 1, 2014, insofar appealed from, affirmed, with $10 costs.

Civil Court correctly denied plaintiff's motion to "enforce a settlement." The documentary evidence submitted established that plaintiff made unilateral modifications to the proposed, unexecuted "settlement agreement." These modifications constituted a counteroffer that defendant expressly rejected (see Winiarski v Duryea Assoc., LLC, 14 AD3d 697 [2005]). Since the parties never came to a meeting of the minds as to the essential terms of the agreement, there was no binding and enforceable agreement (see Fulginiti v Fulginiti, 127 AD3d 1382, 1383 [2015]).

We also sustain the denial of plaintiff's alternative request for partial summary judgment. Plaintiff failed to establish a prima facie entitlement to summary judgment on her breach of contract and General Business Law § 753 causes of action, since she did not provide notice to defendant of the dog's alleged congenital health problems as required by either the parties' February 4, 2011 contract or GBL § 753 (see Sacco v Tate, 175 Misc 2d 901 [App Term, 2nd Dept 1998]).

This constitutes the decision and order of the Court.

I concur I concur I concur

Decision Date: October 01, 2015