Al-Bawaba.com, Inc. v Nstein Tech. Corp.

[*1] Al-Bawaba.com, Inc. v Nstein Tech. Corp. 2009 NY Slip Op 52591(U) [25 Misc 3d 1245(A)] Decided on December 18, 2009 Supreme Court, Kings County Demarest, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2009
Supreme Court, Kings County

Al-Bawaba.com, Inc., Plaintiff,

against

Nstein Technologies Corp., Defendant.



45550/07



Attorney for Plaintiff:

David B. Gordon, Esq.

Shoeman, Updike & Kaufman, LLP

60 East 42nd Street

New York, NY 10165

Attorney for Defendant:

Thomas M. Mullaney, Esq.

708 Third Avenue, Suite 2500

New York, NY 10017

Carolyn E. Demarest, J.

Defendant Nstein Technologies, Inc. (Nstein) moves (1) pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint of plaintiff Al-Bawaba.com, Inc. (Al-Bawaba); and (2) pursuant to § 202.21(e) of the Uniform Rules vacating the Note of Issue and Certificate of Readiness for trial, as filed and served by plaintiff on April 30, 2009, based upon a claim that discovery remains incomplete because plaintiff has withheld relevant documents, failed to make its witness available for examination, and executed redactions of documents without providing a log from which the court can ascertain the propriety of those redactions.

BACKGROUND

This action was commenced by plaintiff to obtain specific performance and/ or damages for defendant's alleged breach of contract. It arises out of defendant's refusal to comply with the terms of an alleged oral agreement to license software to plaintiff. [*2]

Al-Bawaba is a corporation which provides on-line news content. It is organized under the laws of the State of Delaware, and maintains its principal place of business in Amman, Jordan. Nstein, a developer and provider of software technology, is a corporation also licensed under the laws of the State of Delaware, with its principal place of business located in Brooklyn, New York.

Plaintiff, which was investigating sources for software for use on its website as a translator between English and Arabic, first inquired about defendant's products in June of 2005, eventually focusing on certain software products developed by defendant known as Nconcep Extractro, Nfinder and Nlikethis (the software). As alleged in plaintiff's complaint dated December 12, 2007, in or about August 2006, Denis Levallee (Levallee) of Nstein and Hani Jabsheh (Jansheh) of Al-Bawaba entered into an oral agreement, reflected in an exchange of emails beginning on July 27, 2006, and a proffered Master Software License Agreement (MSLA), whereby Nstein was to license the aforementioned computer software products for a term of three years and Al-Bawaba was to pay Nstein $2,500.00 per month for the first year, and $3,000.00 per month for the second and third years of the license. Thereafter, the parties allegedly agreed that, at the end of the third year, plaintiff would own the software and pay a maintenance fee to defendant.

In the course of the e-mail correspondence, defendant forwarded to plaintiff the MSLA, the terms of which plaintiff alleges in the complaint are a memorialization of the terms of the oral agreement reached by Jabsheh and Lavalle but which was never executed. Plaintiff alleges that Nstein has since come under new management that has breached its predecessors' contractual commitments by refusing to license the software to plaintiff on the agreed-upon terms. It bases its demand for specific performance, as well as its claim that it has suffered damages for lost revenue, upon the alleged uniqueness of the software which precluded any possibility that plaintiff could obtain the same functional benefits by purchasing software from another provider in the marketplace. It appears that, although the English language aspect of the software was readily available, the Arabic portion was to be created in response to plaintiff's needs.

For its part, Nstein denies the existence of a binding agreement. It further argues that even if it were found that a binding agreement had been reached, plaintiff's allegation of damages in the amount stated is speculative, that its product was far from unique because similar products are marketed by other software developers and that plaintiff has failed to mitigate damages.

The parties' email exchanges

Negotiations between Jabsheh and Lavalle are manifested by printouts of emails annexed as exhibits to plaintiff's papers, which reflect the following:

1. On July 27, 2006, in the first of the emails, Lavallee (a) identified the software modules which defendant would provide, (b) indicated that although the English version of the software was ready for delivery, the Arabic version required further development ("The [*3]timing of this development needs to be further defined based upon your own timetable and our production schedule."); (c) stated $36,000 as the price for the license of the English version and further set forth the terms of payment as $12,000 payable upon signature of the Software Licence Agreement and a third, or $12,000, payable on the anniversary date of the "SLA";[FN1] (d) similarly set forth the price for the custom developed software license for the Arabic version as $60,000, $20,000 "payable upon signature of the SLA and a third or $20,000 payable on the anniversary date of the SLA; (e) stated the annual fee for support and maintenance as 20% of the software costs; (f) stated the charge for professional services at $1,200 per day; and (g) stated the conditions, which included, inter alia, a three year license and a cap on the number of articles which could be processed, in order for Al-Bawaba to receive the "exceptional pricing" of both the software licenses and professional services.

2. Later that same day, Jabsheh responded "I have an agreement with you in principle subject to the following", and proceeded to propose (a) an alternate payment structure and restriction on the sale of the Arabic services to another which entailed a further discount on the price of the product, and (b) a "tiered approach" for charges "for increase in number or records."

3. On August 1, 2006, Lavallee, while agreeing to cap the price at $36,000, expressed difficulty with the pricing structure proposed by Jabsheh with respect to a further discount ("I have had a lot of pressure from my management about this deal").

4. On August 8, 2006, Jabsheh responded stating:

"You proposed $32k for the first year and $38.2k for two years thereafter. . .(total $108.4k). Let's do this. . .I will agree to $2.5k/month for the first year and $3k per month for two years thereafter for support and the use of the English and Arabic software for up to 1m records per year (total $102k). If we do decide to go into partnerships with your software for other uses. . .then the licensing costs will be deducted from overall monthly revenue and you will get 60% revenue split from the balance. I hope that we can now agree on this. . .[it] is the largest deal we will sign with a supplier ever."

5. The foregoing email elicited the following response from Lavallee later that same day:

"Hani—you just shaved another 5-6% off the pricing—also, should I understand you are looking for monthly payments?"

6. The following day, on August 9, Jabsheh responded by stating: "I would shave of[f] more than that but I just wanted to finalize things and I think we are now very close. The monthly payments are so that we don't end paying too much money at the beginning of every year. We can do it quarterly if you would prefer."

7. Lavalle, by email dated August 8, 2006 stated: "Hani-what you propose is basically a leasing deal where we will help you finance the use of our software—we will do that—we [*4]will offer you a leasing deal where you will pay $2.5k/month the first year and $3k/month the subsequent years—we will invoice you on a monthly basis for as long as you use our software—minimum commitment of 3 years—monthly fee will include both software and support & maintenance costs—the final agreement will include a minimal fee increase on an annual basis after 3 years. Deal?"

8. On August 10, Jabsheh replied: "Hi Denis—I can agree to this provided. . .1—Billing only starts when we launch the service online, not during testing or prelaunch. 2—We have the option of $15,000 at the end of three years to get the software. . . ."

9. On August 11, Lavallee responded by stating that billing would start upon delivery of the software, expressing concern for being dependent on the time it will take for Al-Bawaba's team to deploy the solution into production. He further offered a buy-out clause after 3 years for $32k.

10. In the final email of the string, dated August 15, Jabsheh requested that he and Lavallee speak by phone "and finish this."

In his affidavit, Jabsheh alleges that on or about August 15, 2006, during a telephone call, he and Lavallee, on behalf of their respective corporations, reached an oral agreement for licensing of the software, each acknowledging the existence of a "deal." He further insists that Lavallee never conditioned the implementation of the agreement upon a fully-executed MSLA.

Thereafter, on or about August 16, 2006, and again on or about September 1, 2006, Jabsheh received, via email, Nstein's MSLA, a 15-page contractual form tailored to the proposed contract between the parties here, which defendant asserts, pursuant to company policy, had to be signed by both parties in order to "consummate" a software license.[FN2] In response, Jabsheh advised Lavallee that he would forward said document to counsel. Subsequently, in lieu of providing defendant with a signed MSLA, Jabsheh, on or about September 17, 2006, emailed Lavallee, identifying "as some of the points that the lawyers have come back to us on," 17 items which required further resolution.

On November 2, 2006, Lavallee offered to discuss a new software application, "software as a service" ("SAS"), for the same price, that would better meet the needs of both parties. Jabsheh replied that Al-Bawaba would be interested in this product.

In the final email presented on the record, Lavallee, on January 12, 2007, advised Jabsheh : "I believe we now have a workable SAS solution for you. Would you please send me a few articles in English--we would like to perform some. . .testing on our side with your content. We will then offer you a 2-weeks free trial before we revise our contractual agreement." The email was signed "Thank you in advance. Denis".

At oral argument, it was disclosed that the Arabic software contemplated was not already available through defendant but would have to be created to plaintiff's specifications, [*5]which was never done. In subsequent communications, not produced in the record before the Court, defendant advised plaintiff that it was not interested in proceeding with plaintiff's requests.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

In its motion for summary judgment, Nstein denies that the parties entered into an oral contract, contending that the emails upon which plaintiff relies were merely negotiations and that any agreement required the execution of the MSLA in order to bind the parties, as evidenced by Jabsheh's own admissions at deposition that customary practice requires the signatures of the contracting parties on a written MSLA prior to the release of any software. Movant further contends that Jabsheh's email of September 17, 2006, setting forth approximately seventeen questions raised by plaintiff's attorney after reviewing the MSLA, manifests the failure to agree on the terms of a deal and further undermines any contention that an oral agreement was reached between the parties. Thus, noting that plaintiff did not pay for the software it now seeks, or in any way perform on the contract it now claims existed, defendant, whose earlier motion for dismissal of the complaint pursuant to CPLR 3211(a)(1) and (7) was denied by this court as premature (Al-Bawaba.com, Inc. v Nstein Technologies Corp.,19 Misc 3d 1125[A] [2008]), now asserts, as it did in that prior motion, that the parties had reached no more than an agreement to agree, and submits that the Statue of Frauds (General Obligations Law 7-501) bars plaintiff's claim that the parties had reached an oral agreement on all significant terms. In the alternative, should the court find an issue of fact as to the existence of an enforceable agreement, defendant asserts that plaintiff has suffered no compensable damages as the measure of damages is speculative, and plaintiff failed to mitigate its alleged damages by attempting to obtain a similar product from another source.

In opposition to the motion, Jabsheh, on behalf of plaintiff, avers that on or about August 15, 2006, during a telephone call he had with Lavallee, Al-Bawaba and Nstein reached an oral agreement for the licensing of computer software. Plaintiff contends that the Statute of Frauds does not bar enforcement of the parties' oral agreement because (1) the material terms of the oral agreement were set forth in the series of emails between himself and Lavalle and (2) the court has, by language in its Decision and Order denying defendant's motion to dismiss the complaint, previously determined that an agreement was reached and that is now the law of the case. Thus, in seeking denial of defendant's motion, plaintiff contends that an issue of fact has been raised as to the existence of a binding contract between the parties, requiring resolution by a jury. In addition to asserting that the email string reflects the terms of the oral agreement, it further argues that the MSLA memorialized "many of the material terms of the oral agreement,"[FN3] and reiterates its allegation, as set forth in the complaint, that comments arising out of the review of the MSLA by counsel were [*6]offered merely to clarify certain "internal ambiguities" in the document, but were never intended to indicate any disagreement with the MSLA "to the extent that it memorialized the essential terms of the transaction agreed upon by Messrs. Lavallee and Jabsheh." It contends that Lavalle's email of January 12, 2007 was a signed writing which acknowledged the existence of said oral agreement, and demonstrated defendant's belief that an oral agreement was in place.

As to plaintiff's alleged damages and the uniqueness of defendant's software product, Lavallee testified at his deposition on April 24, 2009 that he is aware, through advertising, of several companies, including IBM, SAS, Exalead, Temis, SAP, Business Objects, Inxight, and Basistech, that license or sell an Arabic version of Nconcept software. Defendant further cites Jabsheh's deposition testimony that since 2006, Al-Bawaba has not "researched or looked into anything else." In opposition to defendant's claim that plaintiff has failed to mitigate damages, plaintiff contends that, based upon Jabsheh's communications with Lavallee, Nstein knew that it sought to license the software for the purpose of increasing profits and that "it knew exactly how Al-Bawaba intended to accomplish that goal." It further alleges, through Jabsheh's own representations and an affidavit, dated July 29, 2009, provided by Ammar Ibrahim (Ibrahim), its Chief Technology Officer, that no other companies provide software that performs the same functions as Nconcept Extractor, Nfinder and Nlikethis.[FN4] In addition, plaintiff provides an affidavit of Mark Gatty Saunt, Director of Advertising and Content Sales for Al-Bawaba, who states that it is his job to sell advertising on plaintiff's network of websites. He alleges that: from September 1, 2006 to the date of his affidavit, plaintiff has turned away, every week, requests for at least 500,000 "advertising impressions"; if Nstein had honored its agreement to license software, plaintiff would have had the pages necessary to accommodate these advertising impressions and been able to accept said requests for advertising; since September 1, 2006, the rate Al-Bawaba has been paid per thousand advertising impressions has never been less than $15.00, and has been as much as $85.00; and thus, according to his formula, defendant's breach has caused plaintiff to lose revenue in the amount of at least $1.14 million.

DISCUSSION

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557 [1980]). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]; see [*7]also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]).

"The question of whether a binding contract exists is one of law that is appropriately decided on a motion for summary judgment" (Gorodensky v. Mitsubishi Pulp Sales (MC), Inc., 92 FSupp2d 249, 254 [SDNY 2000], citing Mallad Construction Corp. v County Federal Savings and Loan Association, 32 NY2d 285, 291 [1973]). In the case at bar, defendant, as movant, has met its initial burden of demonstrating, prima facie, that (1) no enforceable agreement was reached by and between it and plaintiff, and (2) as the proposed agreement was one which was not to be performed within one year of its making, plaintiff has not satisfied the requirements of New York's Statute of Frauds as set forth in GOL 5-701(a)(1). Plaintiff has failed to raise an issue of fact in opposition thereto.

Although, as contended by plaintiff, "[u]nder New York law, parties are free to bind themselves orally, and the fact that they contemplate later memorializing their agreement in an executed document will not prevent them from being bound by the oral agreement" (Ciaramella v Reader's Digest Ass'n, Inc., 131 F3d 320, 322 [2d Cir 1997]; see also Municipal Consultants & Publishers, Inc. v Town of Ramapo, 47 NY2d 144, 149 [1979]), "if the parties intend not to be bound until the agreement is set forth in writing and signed, they will not be bound until then. [Citations omitted] The intention of the parties on this issue is . . . to be determined by examination of the totality of the circumstances" (Ciaramella, 131 F3d at 322). In Ciaramella, upon which plaintiff relies, the question before the Court involved the enforceability of a proposed settlement agreement orally reached by parties to litigation commenced under the Americans with Disabilities Act (42 USC §§ 12101-12213), and Article 15 of the New York Executive Law (NY Exec Law §§ 290-301). The Court of Appeals for the Second Circuit, applying New York law and citing its previous holding in Winston v Mediafare Entertainment Corp. (777 F2d 78, 80 [1985]), articulated four factors, none of which it found to be individually decisive, to guide the inquiry regarding whether parties intended to be bound by a settlement agreement in the absence of a document executed by both sides. These enumerated factors included "(1) whether there has been an express reservation of the right not to be bound in the absence of a signed writing; (2) whether there has been partial performance of the contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4) whether the agreement at issue is the type of contract that is usually committed to writing" (Id. at 323).

Applying the criteria set forth in Ciaramella, the record in this matter fully supports defendant's contention that the parties intended to execute a written agreement, foreclosing any argument that an enforceable oral agreement was ever reached, or even intended. Lavalle's testimony that "it was clearly stated the first day we met with Al-Bawaba and through various phone conversations and in writing that we will have to have an agreement on the terms and conditions of our master software licensing agreement and a signed copy of this [MSLA] in order for Al-Bawaba to use. . .our software", which is corroborated by [*8]Jabsheh's deposition testimony that the telephone conversation in which the agreement is alleged to have been finalized concluded with his direction "send me the contract, we have a deal, send me the contract" (Trans. of 10/29/08 at 177), coupled with the absence of any executed document manifesting mutual assent or any performance or payment referable to any such alleged agreement, amply substantiates defendant's position that the parties contemplated that a formal written contract would be executed at the conclusion of their negotiations as a condition precedent to the creation of a binding contract. Equally supportive of defendant's position are the provisions of the draft MSLA it sent to plaintiff on September 1, 2006, which provides, inter alia, that: (a) "[a]dditional documents, schedules and addenda may be incorporated into and made a part of this Agreement upon the written consent of the parties;" (b) "[b]y signing below, the Parties hereby acknowledge that they read and understand this Agreement and agree to all terms and conditions stated herein;" (c) " Effective date' is the date set forth on the signatory page;" and (d) "this Agreement constitutes the complete agreement between the parties, superceding all prior agreements, understanding, negotiations and discussions, whether oral or written, between the Parties in connection herewith" (see Ciaramella,, 131 F3d at 324 ["The presence of a merger clause is persuasive evidence that the parties did not intend to be bound prior to the execution of a written agreement"]). Moreover, the international software licensing agreement contemplated is clearly the sort of complex, legally-sophisticated contract that necessarily would require a writing. In the absence of a signed writing, no enforceable contract was ever reached and the Statute of Frauds bars the enforcement of any purported oral agreement.

Plaintiff's contention that "the parties' failure to include a statement in any of their communications that, unless and until a written contract was executed, they would not be bound by the oral agreement" evidences their intention to be bound without a signed document is unconvincing, and insufficient to overcome the otherwise clear intent to articulate the terms of agreement in a writing. Although the emails do not expressly condition any commitment upon execution of a written document, the course of the email correspondence contains numerous implicit references to a written agreement. For example, the anniversary date of the "Software Licence Agreement" proposed as a date of payment, set forth in item 7 of Lavallee's detailed email dated July 27, 2006, was acknowledged by Jabsheh in his follow-up email in which he proposed new and additional terms. Moreover, Jabsheh's own deposition testimony supports defendant's position that a signed agreement was an essential prerequisite before it would license its software product. Notwithstanding his claim that "the core of the agreement was in the e-mail", Jabsheh acknowledged that the draft MSLA was "[a] legal agreement, with legal jargon and everything", and "you ask for the IT contract so the guys on both sides can start talking," demonstrating that plaintiff shared defendant's intent to express their final agreement in writing before it would take effect. Contradicting his conclusory assertion, contained in his affidavit, that "there is no custom in the software industry that companies are not bound by oral agreements when subsequent written agreements are contemplated," at his deposition, Jabsheh expressly [*9]acknowledged his awareness that such a written agreement was a normal requirement under industry custom and practice prior to delivery of the product to a customer. It is thus clear that plaintiff was fully aware of defendant's requirement that the MSLA be executed in order to obtain the license to use defendant's software and intended to sign such agreement following review of the draft MSLA by his attorneys.

Far from supporting the claim that the parties orally agreed to the material terms of the MSLA in August of 2006, Jabsheh's own words, including his statement that before an agreement could be "filed away in the company's filing cabinets, it has [sic] to be reviewed by a lawyer and signed" convincingly demonstrate that, as far as plaintiff was concerned, additional terms needed to be resolved and reduced to writing prior to entering an enforceable agreement. Plaintiff's failure to execute the proffered MSLA, seeking instead legal advice and proposing 17 significant modifications to the document, notwithstanding the apparent acceptance of price, indicates no meeting of the minds (see Kaelin v Warner, 27 NY2d 352 [1971]), a lapse not overcome by plaintiff's unavailing attempt to impute mutual agreement by isolating language containing the word "deal" from the context of the emails (see Ciaramella, 131 F2d at 325).

" It is a fundamental principle of contract law that a valid acceptance must comply with the terms of the offer . . .and, if qualified with conditions it is equivalent to a rejection and counteroffer' " (Willis v Ronan, 218 AD2d 794, 795 [1995], quoting Roer v Cross Country Med. Ctr. Corp., 83 AD2d 861 [1981]; see also Robinson v Sweeney, 301 AD2d 815, 818 [2003]). Significantly, Jabsheh's ambiguous attempt to explain why plaintiff's counter proposals were never addressed ("we hadn't agreed to the content of the agreement so that's why I went and seeked [sic] legal advice. . . for the wording of the agreement rather than the negotiating items of the agreement or the commercial items of the agreement" [emphasis provided]) actually supports defendant's contention that plaintiff rejected the terms of the MSLA and that no concrete agreement was ever reached, undermining plaintiff's assertion that the MSLA was a memorandum of an enforceable oral agreement which could be pieced together through the string of emails evidencing the progress of negotiations (see P.A. Bergner & Co. v Martinez, 823 FSupp 151, 157 ["(c)ourts have found that changes in the drafts indicate that there may be material points of contention between the parties even where the parties themselves believe they have reached a fundamental agreement"]).

Plaintiff's self-serving attempt to explain the character of the terms sought to be changed as being nothing more than "internal ambiguities" is unpersuasive. Among the terms regarding which Jabsheh expressed concern were, for example: (a) "Installation", defined as "the successful deployment of the Software", questioned by plaintiff as "Successful in whose opinion?"; (b) the definition of Software ("needs to be enlarged to include Updates'")[FN5]; (c) the non-transferability of the license ("[t]his should be changed as [*10]it does not allow us to use the software should we acquire or be acquired); (d) Nstein's disclaimer of liability as to third party software embedded within the Nstein software; and (e) recourse for a breach of warranty in the event that a failure of the software cannot be corrected. Indeed, the email correspondence is replete with many proposed modifications and conditions evidencing a failure to reach agreement on several issues (see Gorodensky, 92 FSupp2d at 255). Thus, rather than showing that a contract had been formed, plaintiff's own conduct convincingly demonstrates that the parties remained in negotiations (see Woodward v Tan Holding Corp., 32 AD3d 467, 469 [2006]), and had not agreed on critical terms. As a consequence of the lack of any reliable indicia of an agreement, plaintiff's reliance on the holding in Ashland Management Inc. v Janien (82 NY2d 395, 401-02 [1993], wherein a writing reflected the agreement to sign a confidentiality agreement upon which suit was premised, is unavailing.Finally, plaintiff fails to address the significance of Lavallee's email dated January 12, 2007: (a) identifying a different product than that which was named in the MSLA or discussed in the emails relied upon by plaintiff; (b) inviting plaintiff to send some articles for testing by defendant, to be followed by (c) a two-week free trial "before we revise our contractual agreement." From this offer, the indisputable conclusion to be drawn is that no firm agreement had been reached (see Computer Associates Intern., Inc. v U.S. Balloon Mfg. Co., Inc., 10 AD3d 699 [2004] [a contract is unenforceable where there is no meeting of the minds between the parties with regard to a material element thereof]), and that such writings as may have been generated do no more than show that the parties contemplated "a more complex and formal contract," and "merely constituted an agreement to agree which is unenforceable under the Statute of Frauds" (LaBarca v Altenkirch, 193 AD2d 586 [1993]). Under such circumstances, plaintiff's attempt to use the emails to show the existence of a binding final agreement is an unavailing attempt to circumvent the Statute of Frauds.

In New York, General Obligations Law § 5-701 codifies the common-law Statute of Frauds by providing, inter alia, that a contract which is not to be performed within one year of its making, such as that herein, is void "unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith" (GOL 5-701[a][1]). The writing must contain "substantially the whole agreement, and all its material terms and conditions, so that one reading it can understand from it what the agreement is" (Kobre v Instrument Sys. Corp., 54 AD2d 625, 626 [1978], affd 43 NY2d 862 [1978], quoting Mentz v Newwitter, 122 NY 491[1890]; see also Walentas v 35-45 Front St. Co., 20 AD3d 473, 474 [2003]). The note or memorandum required by the Statute of Frauds may be pieced together out of separate writings, some signed, and some unsigned, "provided that they clearly refer to the same subject matter or transaction" (GOL 5-701[b][1]; Crabtree v Elizabeth Arden Sales Corp., 305 NY 48, 55 [1952]; see also Klein v Jamor Purveyors, Inc., 108 AD2d 344, 347 [1985]). Finally, the statute provides that "[t]here is sufficient evidence that a contract has been made if. . .[t]here is evidence of electronic communication (including, [*11]without limitation, the recording of a telephone call or the tangible written text produced by computer retrieval), admissible in evidence under the laws of this state, sufficient to indicate that in such communication a contract was made between the parties" (GOL 5-701[c][1]), and "the tangible written text produced by telex, telefacsimile, computer retrieval or other process by which electronic signals are transmitted by telephone or otherwise shall constitute a writing and any symbol executed or adopted by a party with the present intention to authenticate a writing shall constitute a signing" (GOL 5-701[b][4]).

As a threshold matter, the court rejects plaintiff's contention that the law of the case doctrine forecloses any further discussion of the Statute of Frauds. It is well settled that "[t]hat doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss. . .as the scope of review applicable to each motion is distinct" (Bernard v Grenci, 48 AD3d 722, 724 [2008] [citations omitted]). This Court denied defendant's CPLR 3211 motion solely to afford discovery to plaintiff that might substantiate its claim and overcome the Statute of Frauds.

While it is true that an exchange of signed emails may constitute signed writings evidencing the oral contract within the meaning of the Statute of Frauds (see Williamson v Delsener, 59 AD3d 291 [2009]; see also Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008]), such communications must be sufficiently clear and concrete to constitute an enforceable contract (Williamson, 59 AD3d at 291-292). Indeed, "the rule is well settled that the writing evidencing the contract must, in order to satisfy the Statute of Frauds, state the entire agreement with such certainty that the substance thereof appears from the writing alone" (Brands v Urban, 182 AD2d 287, 290 [1992]). Where it fails to do so, the law provides that "[o]ral testimony will not suffice to prove what the parties intended (Id.), and "[p]arol evidence may not be received to supplement an insufficient writing so as to bring it into compliance with the requirements of the Statute of Frauds (O'Brien v West, 199 AD2d 369, 370 [1993]).

As heretofore discussed, the provisions of the MSLA are set forth in a complex 15-page document containing material terms and conditions that go far beyond the spare content of the parties' emails. Although the emails identify the parties, describe the subject matter, and indicate a proposed purchase price, they fail to set forth such material provisions as prohibitions on use (MSLA, paragraph 2.5), incidents of title and ownership (MSLA, paragraphs 2.7 and 6.1), recourses for breach of warranty (MSLA, paragraph 5.2), early termination (MSLA, paragraphs 8.2, 8.3 and 8.4) and arbitration of disputes (MSLA paragraph 9.4). Thus, far from showing that a binding oral agreement had been reached as evidenced by signed writings, plaintiff has failed to show that the emails, even when read cumulatively, are any more than an incomplete statement of terms that were to be incorporated into a subsequent writing, and only then after further negotiations (see Leist v Tugendhauf, 64 AD3d 687 [2009], citing Papakostas v Harkins, 168 AD2d 547 [1990]). Plaintiff's assertion that Lavalle's emails, particularly that of January 12, 2007, were sufficient as signed writings, is devoid of merit, since, as discussed, lacking clarity and concreteness (see Williamson, 59 AD3d at 291), they cannot be read as an unqualified acceptance of an agreement, with all proposed modifications resolved (see Stevens, 50 AD3d at 254).

Finally, assuming, arguendo, the applicability of part performance in the context of GOL 5-701 (see Horowitz v Santamaria, 287 AD2d 373, 374 [2001] ["Assuming, without deciding, that application of the doctrine is consonant with General Obligations Law § 5-701 (but compare, General Obligations Law §§ 5-701 and 5-703; and see, Messner Vetere Berger McNamee [*12]Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 234-235, n 1")]), plaintiff has failed to support its bare allegation that there has been part performance on the "agreement" so as to remove it from the Statute of Frauds. "[T]he doctrine of part performance may be invoked to remove an oral agreement from the operation of the Statute of Frauds only where plaintiff's actions can be characterized as 'unequivocally referable' to the agreement alleged'. It is insufficient that the agreement confers some "significance" on or provides some motivation for plaintiff's conduct" (Steele v Delverde S.R.I. , 242 AD2d 414 [1997] [citations and internal quotations omitted]). In the instant matter, no equitable grounds warranting application of the doctrine have been identified by plaintiff (see Horowitz, 287 AD2d at 374]). In fact, there is no proffered evidence of performance on either side; no payments were made and no software was created.

In view of the foregoing, the court: (1) grants defendant's motion for summary judgment and dismisses the complaint;[FN6] and (2) denies, as moot, defendant's motion for an order vacating the Note of Issue and Certificate of Readiness.

This constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Lavallee's proposed schedule of payments appears to be incomplete, as it only accounts for $24,000 of the $36,000 total amount.

Footnote 2:According to Jabsheh's deposition testimony, the MSLA of September 1, 2006 was the second iteration of the "template" received by Jabsheh on August 16.

Footnote 3:As pointed out by defendant, because the MSLA contains an arbitration provision, litigation such as that commenced by plaintiff would be barred by its express terms.

Footnote 4:Ibrahim alleges that he contacted IBM, SAS, Exalead, Temis, SAP, Business Object, Inxight and Basistech.

Footnote 5:In his affidavit, Jabsheh argues that "[t]o the extent that Mr. Lavallee and I did not discuss whether upgrades to the Software would be covered by the license fees, that is because: (a) Nstein never said that the software upgrades were being developed, or even contemplated, by it; and (b) Al-Bawaba was willing to proceed with the Oral Agreement absent an understanding regarding upgrades. Moreover, it is inconceivable that an agreement regarding upgrades would have been essential to Nstein alone, inasmuch as Nstein was free to charge for upgrades n the absence of an understanding on that subject."

Footnote 6:The issue of damages need not be addressed, however, the court notes, "To recover such [lost profit] damages in a breach of contract claim, a plaintiff must establish that such damages were actually caused by the breach, that the particular damages were fairly within the contemplation of the parties to the contract at the time it was made' and that the alleged loss is capable of proof with reasonable certainty'" (Awards.com v Kinko's Inc., 42 AD3d 178, 178 [2007] [citations omitted]). Here, plaintiff presents no communication, written or oral, that reflects that the parties contemplated lost profits as a potential basis for damages in the event of a breach, nor is there anything contained in the record to suggest that defendant would have entered into an agreement to undertake responsibility for lost profits, a liability with unlimited potential (Id.; see also Ashland Management Inc., 82 NY2d at 403). In fact, the language contained in the unsigned MSLA concerning "recourse" for breach of the contract would seem to preclude such damages, limiting defendant's liability to amounts paid by plaintiff (Section 5 of the MSLA).