Piller v Marsam Realty 13th Ave., LLC (2013 NY Slip Op 51722(U))

Piller v Marsam Realty 13th Ave., LLC

2013 NY Slip Op 51722(U) [41 Misc 3d 1217(A)]

Decided on October 22, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

The following e-filed papers numbered 1 to 69 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed[*2]18-27, 31

Opposing Affidavits (Affirmations)32-37, 39-64

Reply Affidavits (Affirmations)65-67

Sur-Reply Affidavit (Affirmation)69

Memoranda of Law28, 38, 68

In this action by plaintiff Moshe Piller (plaintiff) seeking specific performance in connection with his purchase of certain real property, defendants Marsam Realty 13th Avenue, LLC (Marsam), B & H of Brooklyn Co. LLC a/k/a B & H Realty of Brooklyn Co. (B & H), Barbara Rascoff (Rascoff) and Harriet Finck (Finck) (collectively, defendants) move for an order: (1) pursuant to CPLR 3001 and 3212 (b), awarding them summary judgment on the first cause of action of plaintiff's amended complaint declaring that the letter of intent executed on behalf of plaintiff and by them on or about December 3, 2012 is not a valid and enforceable contract of sale for real property, and dismissing the second, third, and fourth causes of action in the amended complaint, and (2) pursuant to CPLR 6514, granting Marsam judgment in its favor on the second counterclaim cancelling the notice of pendency filed by plaintiff against the subject premises upon the dismissal of the complaint. Defendants, in their motion, move, in the alternative, for summary judgment dismissing plaintiff's amended complaint as against B & H, Rascoff, and Finck based upon the claimed ground that it fails to state a cause of action as against them. Defendants, in their motion, further move, in the alternative, for summary judgment dismissing plaintiff's fourth cause of action as duplicative.

In November 2012, plaintiff retained the law firm of Silberberg & Kirschner, LLP in connection with his plan to purchase commercial property located at 5101 13th Avenue (Parcel A) and commercial property located at 5115 13th Avenue in Brooklyn, New York (Parcel B) (collectively, the premises) from defendants. Marsam is the fee owner of Parcel A. Stephen A. Agus (Agus) is a member and manager of Marsam. Rascoff and Fink are successor trustees to a trust that owns Parcel B, although initially Rascoff and Finck mistakenly represented that B & H was the fee owner of Parcel B. Plaintiff gave Uri Kirschner, Esq. (Mr. Kirschner) of Silberberg & Kirschner, LLP the authority to negotiate the purchase of the premises and to execute any and all documents in connection with any agreement to purchase such premises on his behalf.

The parties initially met on November 19, 2012, and, thereafter, Mr. Kirschner negotiated the terms of the purchase with Richard Kaplowitz, Esq. (Mr. Kaplowitz) of [*3]Kaplowitz & Kaplowitz, LLP, who represented defendants. The deal was structured by the attorneys as a "contract-close," meaning that the parties would enter into a memorandum agreement, and a contract of sale would be executed at the actual closing. Mr. Kirschner prepared a letter of intent dated December 3, 2012 regarding the acquisition of the premises. The letter of intent set forth that plaintiff or an entity to be formed by him for the purpose of this transaction, as the Purchaser, was expressing his interest to purchase the premises from Marsam and B & H, as the Sellers.

Paragraph 1 of the letter of intent specified that the purchase price for the premises was $14,250,000, and that, at the closing, plaintiff would receive a $250,000 credit against this purchase price to perform necessary renovations to commercial spaces at the premises. Paragraph 2 of the letter of intent, entitled "Cooperation," stated that between the date of its execution and the date of the closing, Marsam and B & H were required to cooperate in supplying access to the premises and all items and documents requested by plaintiff and his lender.

Paragraph 3 of the letter of intent, entitled "Documentation," provided that at the closing of title, the parties would "execute a Purchase and Sale Agreement (in [a] form reasonably similar to that as attached [t]herewith) as well as a bargain and sale deed and other standard assignments and transfer documents relative to the transfer of the Premises." The referenced formal unsigned Contract of Sale annexed to the letter of intent consisted of 17 pages. It (inconsistently with the letter of intent) provided for a purchase price of $14,255,000 and did not mention the $250,000 credit against the purchase price. It stated that a deposit of $1,425,000 was due upon execution of the agreement, and that the balance was due at closing. It set forth a closing date of December 19, 2012 and stated that "time [was] of the essence."

Paragraph 6 of the letter of intent provided that the Seller was to pay all brokerage fees; paragraph 7 of the letter of intent provided that such document may be executed in counterparts; and paragraph 8 of the letter of intent provided that the risk of loss with regard to the premises remained with the Seller until the deed was recorded at the closing.

The letter of intent directed defendants to indicate their acceptance of the foregoing terms by signing and returning it to plaintiff's attorney, Mr. Kirschner. Plaintiff did not execute the letter of intent. Instead, Mr. Kirschner executed the letter of intent, as counsel and on behalf of plaintiff. Mr. Kirschner then sent the letter of intent to Mr. Kaplowitz on or about November 29, 2012. Below the writing "Agreed and Accepted as of November 29, 2012," the letter of intent was executed on behalf of Marsam by its member/manager, Agus, with respect to Parcel A, and executed on behalf of B & H by its member, Rascoff, with respect to Parcel B. Mr. Kirschner prepared the letter of intent with the signature block to be signed by B & H by listing B & H of Brooklyn Co. LLC as the owner of Parcel B since that was the legal name of B & H that appeared on the website of the New York State Department of State (DOS). Rascoff, however, handwrote the dates Dec. 3, 2012 and Dec. 4, 2012 and the name of B & H Realty of Brooklyn Co. above her signature, as the owner of Parcel B, prior to executing the letter of intent. According to the DOS website, B & H Realty of Brooklyn Co. is not an existing entity in the State of New York.^[FN1]

It is undisputed that no separate contract signing was expected to occur thereafter, but that the parties, instead, would go directly to closing based on the letter of intent and that, at that time, they would execute a formal contract of sale and other necessary transfer and title documents. No down payment or deposit was ever paid by plaintiff to defendants with respect to the purchase of the premises. Although Mr. Kaplowitz, on behalf of defendants, in an e-mail sent on December 3, 2012, had sought to obtain a good faith deposit from plaintiff, Mr. Kirschner refused to give a deposit, stating that plaintiff [*5]was "not posting a deposit on the [letter of intent] — otherwise that would be a contract and that takes us to a whole world of things I need which you and I already weren't able to accomplish" (emphasis added).

Plaintiff, following the execution of the letter of intent, ordered title documents. After the receipt of the title report for the premises, it was discovered that title to Parcel B was actually vested in Rascoff and Finck, as executrixes under the Last Will and Testament of Roselle Silberstein, as successor trustees under a Trust Agreement dated October 25, 1956. Title issues relating to the ownership of Parcel B were thereafter cleared by defendants with the title company.

Plaintiff asserts that he performed extensive due diligence, including an appraisal, Phase I and Phase II environmental testing and lead paint testing on the premises, and that he also incurred title and survey charges and attorneys' fees. Plaintiff also set up an LLC, i.e., 13th Plaza Estates LLC, to take title to the premises. Mr. Kaplowitz prepared the closing calculations and the transfer documents.

On December 27, 2012, Mr. Kirschner, plaintiff, Mr. Kaplowitz, Rascoff, Finck, and Michelle Russo, an independent title closer for Riverside Abstract, met at Silberberg & Kirshner, LLP's office for the closing. Mr. Kirschner and plaintiff claim that at the closing, Rascoff, Finck, and Marsam ^[FN2] executed the deeds, the contract of sale, ACRIS documents, title affidavits, and ancient mortgage affidavits. They assert that title was cleared for the sale of the premises at the closing and that all that remained to be done at the closing was to finalize adjustments and wire the funds. Ms. Russo, in an affidavit by her, confirms that all issues regarding title were resolved, which included the ownership issues regarding Parcel B, and that title was cleared to close on December 27, 2012. She also asserts that to the best of her recollection, all pertinent documents necessary to transfer title were presented at the closing, but that she could not stay because she had to attend another closing. She explains that she contacted Riverside Abstract, which informed her that it would send another title closer to take her place and complete the closing. She states that she did not take any closing documents with her when she left because the closing had not been completed and another title closer was on the way to finish the closing.

During the closing, at about 3:00 P.M., plaintiff and Mr. Kirschner took a short recess to attend daily afternoon prayers. According to plaintiff and Mr. Kirschner, after they returned to the closing, they discovered that defendants and Mr. Kaplowitz had abandoned the closing, left the office, and had taken all closing documents with them and removed copies of some of the documents that had been made by Riverside Abstract.

Mr. Kaplowitz denies that defendants abandoned the closing as claimed by plaintiff. According to Mr. Kaplowitz, plaintiff had a "hard money lender present," but [*6]plaintiff was unable to agree to terms with his lender with respect to the financing of the purchase of the premises. Mr. Kaplowitz attests that defendants were permitted to leave the closing at approximately 2:30 P.M. by Mr. Kirschner due to the lack of progress being made, and that at approximately 3:30 P.M., the title closer was also allowed to leave because it became apparent that the transaction would not conclude that day.

Plaintiff does not deny that at the time of the December 27, 2012 closing, he had not yet decided whether he would finance the purchase or whether he would pay all cash by liquidating his assets and that, at that time, he had not yet liquidated his assets. Mr. Kaplowitz asserts that he had a conference call with plaintiff and Mr. Kirschner at approximately 5:00 P.M. that day, in which several new ways to complete the transaction were raised by plaintiff. Mr. Kirschner then invited Mr. Kaplowitz to come to his office on Monday, December 31, 2013 to close.

On December 28, 2012, plaintiff attempted to renegotiate how and when he would pay for the purchase of the premises. Specifically, plaintiff sought to change the time of the closing on one of the Parcels from on or before December 31, 2012, as stated in the letter of intent, to 30 days after December 31, 2012. A December 28, 2012 e-mail from Mr. Kirschner stated as follows:

Plaintiff also attempted to renegotiate the sale price on December 28, 2012 by seeking an additional credit of approximately $50,000 due to an open lead paint violation. Mr. Kaplowitz, by an e-mail dated December 28, 2012, informed Mr. Kirschner as follows:

Plaintiff asserts that he liquidated his certificates of deposit (CDs) at HSBC Bank (HSBC), incurring a $193,000 penalty for early withdrawal, in order to obtain the funds required to close, and that he had $14,000,000 in funds available to him on December 31, 2012. Plaintiff claims that he was only contemplating a hard-money lender for a short-term loan so that he could avoid having to pay these early withdrawal fees. An affirmation by Nataniel Rubinov, the manager of the Boro Park Branch of HSBC, [*7]confirms that plaintiff had access to $14,000,000 throughout the months of November and December 2012, but that these funds were tied up in long-term CDs, which plaintiff could cash in early and incur a penalty. Mr. Rubinov states that plaintiff liquidated his CDs, incurring a $193,000 penalty, and that plaintiff had $14,000,000 in liquid assets ready to be distributed on December 31, 2012.

The parties, however, did not meet for the re-scheduled closing that was to take place on December 31, 2012. Mr. Kaplowitz asserts that he received a telephone call from Mr. Kirschner telling him not to appear because plaintiff was unable to close. Mr. Kirschner claims that he advised Mr. Kaplowitz that the title company was unavailable on December 31, 2012 because it was New Year's Eve, and that it was unable to receive documents or payments on that date. Shaul Greenwald, the president of Riverside Abstract, in an affidavit submitted by him, attests that Riverside Abstract closed early on December 31, 2012 and was not available to receive closing documents or payments on that date.

On January 2, 2012, a check was delivered to Riverside Abstract for $13,950,000 (which plaintiff claims is the full purchase price, as adjusted by defendants' attorney, Mr. Kaplowitz). An e-mail by Mark Pollak of Riverside Abstract stated that he had possession of this check, and he requested to meet with Mr. Kirschner to drop it off and simultaneously pick up the deeds and transfer documents. Mr. Kirschner responded, in an e-mail, that no funds tendered by plaintiff were to be released until such time as he has reviewed what he had received from the sellers and until he authorized the release of the funds.

Mr. Kaplowitz states that on January 2, 2012, after the December 31, 2012 final date set by the letter of intent for closing, he was informed that plaintiff obtained a check for the purchase price. Defendants, however, refused to close because they claimed that the letter of intent specifically provided that the closing had to take place by December 31, 2012 so that they could take advantage of certain tax laws. They contended that the letter of intent was not binding because they and plaintiff never agreed upon a price or payment terms and because the letter of intent provided that they agreed to convey title to plaintiff only if plaintiff was ready and able to close title by December 31, 2012 and plaintiff was unable to close by such December 31, 2012 deadline.

On January 9, 2013, plaintiff commenced this action by e-filing his summons and verified complaint. Plaintiff also filed a notice of pendency, dated January 9, 2013, against the premises. Plaintiff's original complaint, which was verified by plaintiff, alleged that on December 27, 2012, at approximately 12:30 P.M., the parties, appeared for a "dry" closing and that all documents were to be executed and exchanged at the dry closing and held in escrow by Riverside Abstract, and that the transaction would then be funded thereafter on December 31, 2012. Plaintiff further alleged that defendants failed to come prepared for the closing by not bringing the standard documents such as estoppel certificates, licenses, permits, leases, and tenant files. Plaintiff's original complaint [*8]asserted a first cause of action for breach of contract, a second cause for breach of the covenant of good faith and fair dealing, a third cause of action for specific performance, a fourth cause of action for fraud based upon allegations that the rent roll for the premises contained material inaccuracies which inflated rental income in order to leverage a higher purchase price from him and seeking a downward adjustment of the purchase price in the amount of $120,000, and a fifth cause of action for fraud with respect to Rascoff and Finck's representation that B & H was the owner of the premises in order to induce him to executed the letter of intent with the belief that there would be no ownership issues with respect to Parcel B at the closing. Plaintiff's original complaint was superseded by an amended verified complaint filed on April 9, 2013.

Plaintiff's amended complaint omits the allegation that the December 27, 2012 closing was to be a "dry closing" with funding to take place later and also omits the allegation that defendants came unprepared for the closing. It also omits the fraud causes of action and does not seek a reduction in the purchase price of the premises. Plaintiff's amended complaint alleges that Rascoff, Finck, and Marsam executed all documents necessary to effectuate the sale of the premises to him, including deeds, ACRIS documents, title affidavits, ancient mortgage affidavits, satisfactions of mortgages, assignments and assumptions of leases, rents and security deposits, notices to tenants, FIRPTA affidavits, and assignments of litigations, thereby partially performing under the letter of intent. Plaintiff alleges that he had the necessary funds to complete the transaction as provided in the letter of intent on and before December 31, 2012.

Plaintiff's first cause of action for a declaratory judgment alleges that the letter of intent contains all material terms necessary to effectuate the sale of the premises from defendants to him, that he performed under the letter of intent, and that defendants partially performed under the letter of intent by attending the closing and executing documents at the closing. Plaintiff seeks a declaratory judgment that the letter of intent is a binding, enforceable contract between the parties. Plaintiff's second cause of action seeks specific performance of the sale of the premises, alleging that he was ready, willing, and able to close by December 31, 2012 pursuant to the terms of the letter of intent, and that he performed all of his obligations under the letter of intent.

Plaintiff's third cause of action for breach of contract alleges that defendants refused to consummate the sale of the premises to him as set forth in the letter of intent, and that this refusal constitutes a breach of the letter of intent. Plaintiff seeks to recover monetary damages as a result of defendants' alleged breach of the letter of intent, consisting of lost tax deductions and out-of-pocket expenses, including fees incurred in connection with the formation of the LLC to take title to the premises, title fees, loan fees, costs incurred to liquidate his assets, expenses from extensive due diligence studies, property insurance on the premises, attorneys' fees, and expenses for lead paint testing.Plaintiff's fourth cause of action for breach of the covenant of good faith and fair dealing alleges that defendants breached this covenant by refusing to consummate the sale [*9]of the premises to him under the letter of intent, and he seeks damages arising from such alleged breach.

Defendants e-filed an amended answer on April 29, 2013. On June 6, 2012, defendants e-filed this motion for summary judgment.

Defendants, in support of their instant motion, argue that the letter of intent is not an enforceable contract because it does not satisfy the Statute of Frauds. General Obligations Law § 5-703 (2) provides that "[a] contract . . . for the sale of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his [or her] lawful agent thereunto authorized by writing."

" To satisfy the [S]tatute of [F]rauds, a memorandum evidencing a contract and subscribed by the party to be charged must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement" (Nesbitt v Penalver, 40 AD3d 596, 597 [2d Dept 2007], quoting Walentas v 35-45 Front St. Co., 20 AD3d 473, 474 [2d Dept 2005]; see also Tamir v Greenberg,119 AD2d 665, 666 [2d Dept 1986], appeal denied 68 NY2d 607 [1986]; Sheehan v Culotta, 99 AD2d 544, 545 [2d Dept 1984]). " [The] writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone . . . If the contract is incomplete and it is necessary to resort to parol evidence to ascertain what was agreed to, the remedy of specific performance is not available'" (Checkla v Stone Meadow Homes, 280 AD2d 510, 510-511 [2d Dept 2001], quoting O'Brien v West, 199 AD2d 369, 370 [2d Dept 1993]). "If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482 [1989], rearg denied 75 NY2d 863 [1990], cert denied 498 US 816 [1990]).

"The essential terms' which should be set forth for the writing to be enforceable include those terms customarily encountered in transactions of this nature' . . ., such as the purchase price, the time and terms of payment, the required financing, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, adjustments for taxes and utilities, etc." (Nesbitt, 40 AD3d at 598 [citation omitted]; see also Sabetfard v Djavaheri Realty Corp., 18 AD3d 640, 641 [2d Dept 2005]; Rahimzadeh v M.A.C. Assoc., 304 AD2d 636, 637 [2d Dept 2003]; O'Brien, 199 AD2d at 371; Dahm v Miele, 136 AD2d 586, 587 [2d Dept 1988]). There is no meeting of the minds of the parties where essential terms of the contract are omitted from a writing and the writing constitutes merely an agreement to agree which is unenforceable under the Statute of Frauds (see La Barca v Altenkirch, 193 AD2d 586, 586 [2d Dept 1993]).

Thus, if, at the time a writing is created, "an essential element of the contemplated contract . . . is unsettled and left for future negotiations, the agreement is unenforceable under the Statute of Frauds" (Sheehan, 99 AD2d at 545; see also Willmott v Giarraputo, 5 [*10]NY2d 250, 253 [1959]; Carmon v Soleh Boneh Ltd., 206 AD2d 450, 450 [2d Dept 1994], lv denied 85 NY2d 804 [1995]; Bhutta Realty Corp. v Sangetti, 165 AD2d 852, 854 [2d Dept 1990]). In this regard, it has been specifically held that "[t]he price and terms of payment are essential elements of a contract for the sale of real property" (Pino v Harnischfeger, 42 AD3d 980, 984 [4th Dept 2007]; see also Donner v Septimus, 137 AD2d 484, 485 [2d Dept 1988]; Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d 203, 215 [2d Dept 1980]).

Here, despite the substantial amount of the purchase price, the letter of intent failed to set forth the method of payment and how plaintiff would finance the purchase, and these material terms were the subject of future negotiations between the parties. While paragraph 2 of the letter of intent referred to plaintiff's "lender" and paragraph 5 referred to plaintiff's "lending institution," plaintiff claims that he was only contemplating a hard-money lender for a short-term loan so that he could avoid the early withdrawal fees which he would incur by withdrawing from CDs at HSBC and that he had the $14,000,000 available in liquid funds from HSBC by December 31, 2012 after he withdrew deposits and CDs at HSBC. Plaintiff, however, does not deny that at the closing on December 27, 2012, he had not yet liquidated these funds and was still contemplating using a lender. Indeed, it appears that plaintiff had not resolved the issue of whether he would obtain financing or pay all cash until December 31, 2012, following the aborted closing on December 27, 2012 and after it was too late to effectuate a closing on that date with the participation of the title company.

Notably, the letter of intent is entitled "Letter of Intent," rather than "Contract of Sale," and, thus, its title is indicative of an intent to enter into a contract, rather than to constitute a binding contract of sale. Mr. Kaplowitz asserts that on November 9, 2012, he had provided Mr. Kirschner with a formal contract, but this contract was not signed by plaintiff, and the parties, instead, elected to proceed by the letter of intent, which merely provided plaintiff with an option to purchase the premises and proceed to closing within a certain time frame if negotiations were successful.

Furthermore, the letter of intent expressly stated that "at the closing of title, [S]eller[s] and Purchaser shall execute a Purchase and Sale Agreement," indicating the parties' intent to execute a subsequent formal mutually binding contract. As noted above, the letter of intent also annexed a sample unsigned formal contract, which set forth that the purchase price was $14,255,000 and did not reference the credit of $250,000 set forth in the letter of intent, and the parties continued to negotiate with respect to the price of the purchase.

Significantly, no down payment was given by plaintiff, indicating an intent to not be contractually bound. In fact, as noted above, Mr. Kirschner, in his December 3, 2012 e-mail, stated that plaintiff's refusal to provide a deposit was due to the fact that this would then "be a contract," which they were not "able to accomplish." In addition, plaintiff did not himself sign the letter of intent, but had his attorney sign it on his behalf, [*11]and there is no showing that Mr. Kirschner was authorized in writing to bind plaintiff to purchase the premises, further indicating that plaintiff, although now seeking to bind defendants, as the parties to be charged pursuant to the Statute of Frauds, did not himself intend to become bound to purchase the premises.

Plaintiff contends that the absence of a signed contract of sale is solely due to defendants' conduct. Mr. Kirschner asserts that to the best of his recollection, a contract of sale, as contemplated by the letter of intent, was signed by Rascoff and Finck, and that Agus pre-signed the contract of sale, which was brought to the closing by Mr. Kaplowitz. Plaintiff claims that defendants abandoned the closing, absconding with all of the documents, and that they, alone, are in possession of a signed contract of sale. However, neither Mr. Kirschner nor plaintiff assert that plaintiff executed the contract of sale, and, in any event, plaintiff concedes that he cannot produce this alleged contract of sale, which was admittedly never given to him.

Moreover, after the parties executed the letter of intent, they continued to engage in further negotiations of material terms of the contract, including how and when plaintiff would pay for the purchase and plaintiff's proposed decrease in the sales price for the premises. Such continuing negotiations evinced the lack of binding contractual terms (see Sheehan, 99 AD2d at 545).

With respect to the sales price for the premises, plaintiff, by Mr. Kirschner's December 28, 2012 e-mail, attempted to renegotiate the purchase price and repudiate the letter of intent by seeking a reduction in price by way of an additional credit of approximately $50,000 due to an open lead paint violation (see Sabetfard,18 AD3d at 642). As to how plaintiff would pay for the purchase, plaintiff, through another e-mail by Mr. Kirschner on December 28, 2012, sought to postpone the closing on one of the Parcels to 30 days after December 31, 2012 while providing a $500,000 down payment towards that purchase, and pay all cash on the other Parcel at a closing on December 31, 2012. This new offer on December 28, 2012 constituted a counteroffer or a repudiation of the terms of the letter of intent which required that the closing and full payment of the purchase price for the entire transaction take place on or before December 31, 2012 and that if plaintiff was unable to close the transaction by that date, Marsam and B & H would be under no further obligation to convey the premises to him. It further evidenced the lack of binding terms and plaintiff's inability to close on both Parcel A and Parcel B by the December 31, 2012 deadline set forth in the letter of intent.

Plaintiff, citing Huang v Shih (73 AD3d 981, 982 [2d Dept 2010]), also contends that defendants have not shown that they would suffer any substantial hardship due to the loss of a tax credit by closing after December 31, 2012. Plaintiff's reliance upon this case, however, is misplaced since, in that case, unlike the case at bar, there was no requirement that the closing take place by a stated date.

Thus, the court finds that the letter of intent merely provided the framework for continuing negotiations aimed at the execution of a binding agreement, and, therefore, [*12]was itself an unenforceable agreement to agree. Since the parties never came to a meeting of the minds regarding the essential terms of the agreement, there was no binding and enforceable contract for the sale of the real property (see Winiarski v Duryea Assoc., LLC, 14 AD3d 697, 698 [2d Dept 2005]).

Plaintiff contends that he performed in reliance upon the letter of intent by liquidating his assets to secure the funds necessary to consummate the purchase of the premises and incurring substantial penalties for early withdrawal. He argues that based upon this performance by him, the doctrine of part performance should take the letter of intent outside of the Statute of Frauds and render it enforceable. This argument is unavailing. An agreement which violates the Statute of Frauds may be enforceable only "where there has been part performance unequivocally referable' to the contract by the party seeking to enforce the agreement" (Barretti v Detore, 95 AD3d 803, 806 [2d Dept 2012]). Here, plaintiff's withdrawal of his CDs could not constitute part performance under the letter of intent since the letter of intent had a deadline of December 31, 2012 for the closing and plaintiff did not tender these funds to defendants until after such December 31, 2012 deadline.

Plaintiff also argues that defendants' motion is premature since he has not had an opportunity to conduct any discovery, and that summary judgment should, therefore, be denied, pursuant to CPLR 3212 (f). This argument is rejected. There is no basis to postpone the determination of defendants' motion since plaintiff cannot show that any evidence relevant to the issue of whether the letter of intent is enforceable under the Statute of Frauds could be obtained by engaging in discovery (see generally Freiman v JM Motor Holdings NR 125-139, LLC, 82 AD3d 1154, 1156 [2d Dept 2011]).

Consequently, with respect to plaintiff's first cause of action for a declaratory judgment, the court declares that the letter of intent is not a binding, enforceable contract between the parties (see CPLR 3001). Since plaintiff is not entitled to specific performance of the sale of the premises due to the absence of a binding contract and his inability to demonstrate that he was able to close by December 31, 2012, his second cause of action for specific performance must be dismissed ^[FN3] (see CPLR 3212 [b]; Nesbitt, 40 [*13]AD3d at 597-598; O'Brien, 199 AD2d at 370). In addition, plaintiff cannot be held liable for breach of contract since no binding contract was created, requiring the dismissal of his third cause of action for breach of contract (see CPLR 3212 [b]; General Obligations Law § 5-703 [2]).

With respect to plaintiff's fourth cause of action, which alleges a breach of the covenant of good faith and fair dealing, it is well established that "[a] cause of action to recover damages for breach of the implied covenant of good faith and fair dealing cannot be maintained where the alleged breach is intrinsically tied to the damages allegedly resulting from a breach of the contract'" (Deer Park Enters., LLC v Ail Sys., Inc., 57 AD3d 711, 712 [2d Dept 2008], quoting Canstar v Jones Constr. Co., 212 AD2d 452, 453 [1st Dept 1995]). Here, the conduct and resulting injury alleged in plaintiff's fourth cause of action are identical to those alleged in his second cause of action for breach of contract. Therefore, plaintiff's fourth cause of action must be dismissed as duplicative of his breach of contract cause of action (see Deer Park Enters., LLC, 57 AD3d at 712).

Accordingly, defendants' motion for an order, pursuant to CPLR 3001 and 3212 (b), awarding them summary judgment on plaintiff's first cause of action by declaring that the letter of intent is not a valid and enforceable contract of sale for real property, and dismissing plaintiff's second, third, and fourth causes of action, is granted. In view of this disposition, defendants' motion, insofar as it seeks an order, pursuant to CPLR 6514,^[FN4] cancelling the notice of pendency filed against the premises is granted, and defendants' motion, insofar as it seeks alternative relief, is rendered moot.