Practice point: The Appellate Division affirmed dismissal of the complaint based on a memorandum of understanding that plaintiff argues was a Type II agreement under Federal case law, requiring the parties to negotiate in good faith to finalize a settlement. The memorandum states that the parties have reached an "agreement in principle subject documentation acceptable to the parties and court approval." The Appellate Division noted that, in prior motion practice, plaintiff's counsel had admitted that the memorandum was merely an agreement to agree, and so the Appellate Division held that it was not an enforceable contract.
Student note: The Appellate Division noted that the Court of Appeals has rejected "the rigid classification into Types" in favor of asking whether the agreement contemplates the negotiation of later agreements as a precondition of a party's performance.
Case: Offit v. Herman, NY Slip Op 07056 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Sidewalk defects and an abutting landowner's liability.