The following documents were read in connection with the parties' respective motions for summary judgment.

Notice of motion of Porpora defendants, statement of material facts,

memorandum of law, affidavit of Robert Porpora, affirmation, exhibits1-21

Notice of motion of Majed Nesheiwat and Gas Land Petroleum, Inc.,

affirmation, statement of material facts, memorandum of law, exhibits22-49

The plaintiff's notice of motion, affidavit of Sammy Eljamal,

affirmation, statement of material facts, memorandum of law, exhibits50-84

Porpora defendants' memorandum of law in opposition, response to the

plaintiff's statement of undisputed facts, affirmation in opposition,

exhibits85-94

The plaintiff's attorney's affirmation in opposition, response to the

defendants' statements of undisputed facts, memorandum of law,

exhibits95-102

Majed Nesheiwat and Gas Land Petroleum, Inc.'s attorney's affirmation

in opposition, response to the plaintiff's statement of undisputed facts,

memorandum of law in opposition, exhibits103-113

Porpora defendants' reply memorandum of law114

The plaintiff's attorney's affirmation in reply, memorandum of law in

reply, exhibits115-121

The plaintiff commenced this action to compel specific performance of a lease option to purchase real property. Pending before this Court are three motions for summary judgment: (1) the motion of defendants Robert Porpora Realty Corp. (hereinafter RPRC), Robert Porpora (hereinafter Porpora) and Robert Porpora, Inc. (hereinafter collectively the Porpora defendants) for summary [*2]judgment dismissing the complaint insofar as asserted against them, (2) the motion of the defendants Majed Nesheiwat and Gas Land Petroleum, Inc. (hereinafter collectively Gas Land) for summary judgment dismissing the complaint insofar as asserted against them, and (3) the plaintiff's motion for summary judgment.

It is undisputed that, in 2002, the plaintiff entered into a ten-year agreement to lease certain real property, operated as a gas station and convenience store, from RPRC. The contemplated lease term was from February 1, 2002 to January 31, 2012. The lease contained a right of first refusal on any offer to purchase the property from RPRC during the lease term, and a tenant's option to purchase the property with the following terms:

TENANT'S OPTION - Upon six (6) months' advanced written notice by Tenant to Landlord prior to the end of the first ten (10) year term of this Lease or prior to the end of the term as it may be extended at the option of Tenant, Tenant shall have the option to purchase the entire real property. The purchase price for said real property . . . shall be determined by the independent selection by Landlord and Tenant of appraisal experts for the purpose of determining the fair market value of such real property . . . . In the event the fair market values determined by the aforesaid independent appraisal experts do not agree, the parties' respective appraisers shall select a third independent appraiser or appraisers to determine said fair market values and that third appraiser's or appraisers' valuation shall bind the parties. The appraised value shall take into account any environmental conditions created by tenant which decrease the value of the property.

In 2006, the plaintiff purportedly served written notices on Porpora of its intent to exercise the option to purchase, but no further action was taken pursuant to those notices to accomplish a sale (Porpora defendants' motion, Exhibit O, ¶ 6).

In April 2008, after various disputes arose between the parties, RPRC commenced a summary proceeding to evict the plaintiff in the Town of North Castle Justice Court (Porpora defendants' motion, Exhibit B).

In response, the plaintiff commenced an action against RPRC in the Supreme Court, Westchester County, to compel a sale of the premises under the lease option. [*3]

On July 1, 2009, the parties met for settlement negotiations at the office of the plaintiff's principal. Although the precise events of that meeting are somewhat in dispute by the parties, it is undisputed that Porpora appeared at that meeting with his attorney, Lindsay Rosenberg, Esq., and that the purpose of the meeting was to resolve the litigation and negotiate a purchase price for the property. Following the meeting, on that same day, the attorneys for the plaintiff and RPRC executed a letter agreement, by fax, dated July 1, 2009. This letter agreement, which is of central importance to the instant litigation, states in pertinent part:

This binding letter of understanding formalizes the agreement reached earlier today between Friendly Service New Rochelle ("Friendly") and Robert Porpora Realty Corp. ("Porpora"), to be followed by a Contract of Sale incorporating these terms:

1. Porpora, as owner, will sell, and Friendly (or its designee) will purchase, the property located at 360 Main Street, Armonk, New York, (the "Premises"), at the purchase price of $1,625,000.00, subject to customary offsets and adjustments at closing.

2. Upon closing, Friendly, as landlord, will enter into a ten-year lease agreement with Porpora, as tenant, whereby Porpora will pay rent [according to a stipulated schedule].

5. The parties will execute a formal Contract of Sale for the Premises incorporating the terms now agreed upon. However, the terms of this letter agreement shall be binding upon the parties and may be enforceable in the event either party fails or refuses to execute a Contract of Sale, or where otherwise permitted.

6. The pending action shall be marked settled by the Court and Porpora's attorney shall discontinue, with prejudice, the summary proceeding now pending and stayed in the Town Court for the Town of North Castle. Friendly and Porpora waive, with prejudice, the claims brought by either party in this action or in any summary proceeding commenced to date.

7. Notwithstanding the foregoing, nothing herein shall be deemed to constitute a waiver of Friendly and Porpora's rights under the lease agreement currently in effect except as to the claims interposed in this action or any summary proceeding heretofore commenced.

7. [sic] The attorneys signing below are authorized, on behalf of their respective clients, to execute this binding letter agreement.

By fax cover letter dated July 2, 2009, Rosenberg transmitted the signed letter agreement to the plaintiff's counsel. In the cover letter, Rosenberg stated: "My client has no problem doing a January 2010 closing which your client seemed to want, so we can go to contract now." [*4]

The parties filed a "stipulation discontinuing action," dated July 6, 2009, with this Court. The stipulation is signed by counsel for the plaintiff, and by Rosenberg, who is listed as attorney for RPRC. The parties also discontinued the summary proceeding pending in the Town of North Castle Justice Court to evict the plaintiff from the premises.

By e-mail dated September 15, 2009, Rosenberg wrote to the plaintiff's counsel requesting "draft documents (contracts and leases) for our agreed upon settlement." Rosenberg stated that his client was "anxious to execute all documents as soon as possible."

On March 18, 2011, the plaintiff's principal sent a letter to RPRC's principal by certified mail, stating his intention to exercise the purchase option. The letter references the "Binding Letter of Understanding" dated July 1, 2009.

On December 2, 2011, non-party BPD Bank commenced an action against RPRC to foreclose on the property (Westchester County Supreme Court Index No. 53980/2011). According to the complaint filed in that action, BPD Bank sought to recover the sum of $1 million plus fees and interest.

On January 13, 2012, the plaintiff's principal sent Porpora another letter reiterating its intention to purchase the property pursuant to the July 1, 2009 letter agreement (Porpora defendants' motion, Exhibit F).

On January 31, 2012, the plaintiff's lease expired.

On or about February 3, 2012, Gas Land entered into an agreement with RPRC to purchase the property at a sale price of $3 million. Gas Land paid RPRC a $500,000 deposit, which is currently being held in escrow by RPRC's attorneys (Porpora Affidavit ¶ 19).

On February 9, 2012, RPRC commenced a new proceeding in Town of New Castle Justice Court to evict the plaintiff.

Thereafter, on February 24, 2012, the plaintiff commenced the instant action seeking, inter alia, specific performance of the July 1, 2009 letter agreement or, in the alternative, specific performance of the March 2011 attempt to exercise the option to purchase the property.

On May 1, 2012, Gas Land purchased BPD Bank's note and mortgage that encumbered the property. On May 2, 2010, the note and mortgage were assigned to Gas Land.

In an order dated March 8, 2013, this Court (Adler, J.) granted Gas Land's motion to be substituted for BPD Bank as the plaintiff in the separately pending foreclosure action. According to that order, RPRC consented to foreclosure and agreed to cooperate with Gas Land in the action.

The Pleadings [*5]

The amended verified complaint (Porpora Motion, Exhibit I) asserts eight causes of action. The first and second causes of action seek a declaration that the 2009 letter agreement is binding on the parties, and an order directing specific performance of that agreement. The third and fourth causes of action seek, in the alternative, a declaration that the March 18, 2011 letter from the plaintiff's principal to RPRC's principal was a valid exercise of the lease option and an order directing specific performance of that notice. The fifth cause of action alleges that Gas Land tortiously interfered with the plaintiff's contract with RPRC. The sixth cause of action alleges a conspiracy between the defendants to prevent the plaintiff from purchasing the property. The seventh cause of action asserts a cause of action against the defendants for prima facie tort. The eighth cause of action seeks an injunction preventing the sale of the property to Gas Land.

In RPRC's amended verified answer, it asserts four affirmative defenses: (1) that the alleged contract violates the statute of frauds, (2) that the complaint fails to state a cause of action, (3) that the plaintiff is guilty of laches, and (4) that the agreement is uncertain in its terms (see Porpora Motion, Exhibit J).

In Gas Land's verified answer it asserts, among other things, a counterclaim alleging that the plaintiff has tortiously interfered with its contract to purchase the real property from RPRC (see Gas Land Motion, Exhibit D).

Deposition Testimony

The following deposition testimony is relevant to the issues presently before this Court.

In his deposition, Porpora testified that he attended a meeting at Eljamal's office on July 1, 2009, at which time he was accompanied by his attorney Lindsay Rosenberg (Porpora Depostion at 187-188). The purpose of the meeting was, among other things, to negotiate a price for the sale of the subject property (id. at 189). According to Porpora, "we didn't come to any conclusion on prices" (id. at 190). Porpora did not recall the figure of $1,625,000 being mentioned during the negotiations, and largely could not recall the discussions that occurred (id. at 190-193). Porpora denied ever seeing the letter agreement, and he denied that the parties had ever agreed on the terms contained therein (id. at 191). Porpora met privately with Rosenberg both before and after the July 1, 2009 meeting (id. at 192).

Lindsay Rosenberg, Esq., acknowledged at his deposition that he signed the 2009 letter agreement. He testified that the letter "was prepared by [the plaintiff's attorney] after our meeting which summarized what we had discussed at the meeting" (Rosenberg Deposition at 19). Rosenberg had obtained an appraisal report "to help us negotiate a possible settlement" to the pending action (id. at 13-14). When asked whether the letter agreement accurately reflects what was discussed at the July 1, 2009 meeting, Rosenberg answered, "To be honest, I'm not sure" (id. at 20-21). Rosenberg invoked the attorney-client privilege and refused to answer when asked whether he was authorized to sign the letter agreement (id. at 21). Rosenberg was questioned about the stipulation [*6]discontinuing the prior action, which he signed on behalf of RPRC, and he testified that he did not recall why he signed it (id. at 22).

The plaintiff's principal, Sammy Eljamal, testified that he was present during negotiation of the terms that were incorporated into the July 1, 2009 letter agreement (Eljamal deposition at 251). During the negotiations, which were held in a conference room at Eljamal's office, the plaintiff's attorney, Porpora, and Rosenberg were also present (id.). After the meeting, Eljamal called Porpora to set up a date to meet with contractors to do an environmental study of the property, but Porpora never got back to him (id. at 260). Eljamal continued to remind Porpora of his intention to purchase the property, even mentioning in Christmas cards that he would be exercising the lease option (id. at 263). Eljamal testified that he reiterated his intention to purchase the property whenever he met with, spoke to, or wrote to Porpora (id. at 263-264).

Motions before this Court

The parties to the instant action now move for summary judgment.

The Porpora defendants argue that the 2009 letter agreement is in violation of the statute of frauds since Porpora's attorney, not Porpora himself, signed the agreement, and therefore, it is unenforceable. In an affidavit, Porpora states: "I did not sign the Letter Agreement, nor did I give my attorney written authority on my behalf to sign a document authorizing the sale of my property. I did not even see this Letter Agreement until after the commencement of this action" (Porpora Affidavit ¶ 15). According to Porpora, "there was no communication from the Plaintiff or its representatives until March 2011" when Eljamal sent a letter attempting to exercise the lease option to purchase the property (Porpora Affidavit ¶ 16). Porpora contends that Rosenberg lacked authorization to execute a contract of sale for real property on behalf of RPRC and, thus, his signature could not bind RPRC pursuant to the statute of frauds. In support of the motion, the Porpora defendants submit a March 18, 2008 agreement between RPRC and Rosenberg, in which RPRC appoints Rosenberg as its

"true and lawful attorney and agent to sign, renew and/or cancel leases for the premises or any part thereof; to collect rent due or to become due and give receipts therefore; to issue Notices to Cure complaining of conditions created by tenants in the premises as required by law; to terminate tenancy and to sign and serve in the name of the owner, such notices as are appropriate; to institute and prosecute actions; to retain from the Division of Housing and Community Renewal any and all necessary documentation which may be required; to evict tenants to recover possession of said premises; to demand and sue for, in the name of the owner, and to recover rent and other sums due; and when expedient, to settle, compromise or release such actions or suits, or reinstate such tenancy, subject to landlord's approval."

Gas Land argues that the 2009 Letter Agreement is not enforceable since Rosenberg did not have written authority to settle the action, and that the letter nevertheless fails to include all of the essential terms for a valid and binding agreement. Further, Gas Land contends that specific performance should be denied pursuant to the doctrine of laches in light of the plaintiff's delay in failing to close after his various attempts to exercise the option. Additionally, the plaintiff could not exercise the option in March 2011 since it had been extinguished by the prior attempts to exercise it. Gas Land argues that, since the plaintiff did not have a binding contract of sale, it may not be held liable for tortious interference with contract and that, in any event, it did not enter into a contract with RPRC until February 3, 2012, after the plaintiff's lease had expired.

In support of its motion for summary judgment, the plaintiff argues that Rosenberg was a lawfully authorized agent of RPRC and, therefore, could bind it to a sale of the property. With respect to the statute of frauds, the plaintiff argues that the 2009 letter agreement contains all of the essential terms to be enforceable, and that the law will serve to fill in any remaining omissions. The plaintiff contends that the March 18, 2008 authorization, which, among other things, authorized Rosenberg to "settle, compromise or release" certain actions relating to tenancies on the subject property authorized him to sign the 2009 letter agreement.^[FN1] The plaintiff argues that an attorney involved in ongoing settlement negotiations has apparent authority to execute a settlement agreement, and that the discontinuance of the 2008 Supreme Court action and the separately pending summary eviction proceeding constitute part performance under the letter agreement. Alternatively, the plaintiff argues that even if the 2009 letter agreement is unenforceable, the March 18, 2011 attempt to exercise the option was valid. In an affidavit in support, Eljamal reiterates his claim that the parties negotiated a settlement to the prior action at a meeting at his office on July 1, 2009. Eljamal avers that Porpora was present with his attorney, Lindsay Rosenberg, Esq. Further, Eljamal claims that he never abandoned his intention to purchase the premises, as evidenced by the March 18, 2011 letter to Porpora reiterating his intent to purchase the property.

For the reasons set forth below, the Court finds that the 2009 letter agreement signed by [*8]Rosenberg is enforceable against RPRC, that it contains all of the essential terms necessary to form a complete contract for the sale of the property, and that enforcement of the agreement is not barred by the doctrines of abandonment or laches. However, an order directing specific performance is premature at this time, as the plaintiff has failed to come forward with documentation substantiating its ability to close. With respect to the remaining causes of action, Gas Land has failed to meet its prima facie burden for dismissal of the plaintiff's cause of action for tortious interference with contract. However, the defendants are entitled to summary judgment dismissing the conspiracy and prima facie tort causes of action.

I. The Letter Agreement is a Binding Stipulation of Settlement

The plaintiff has established, prima facie, that Rosenberg was clothed with apparent authority to settle the prior litigation (see Hallock v State of New York, 64 NY2d 224, 231 [1984]).

CPLR 2104 governs stipulations of settlement, and provides in relevant part: "An agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney" (CPLR 2104 [emphasis added] Bonnette v Long Island College Hospital, 3 NY3d 281, 286 [2004] ["[T]o be enforceable under CPLR 2014 an out-of-court settlement must be adequately described in a signed writing"]).

"From the nature of the attorney-client relationship itself, an attorney derives authority to manage the conduct of litigation on behalf of a client, including the authority to make certain procedural or tactical decisions" (see Hallock v State of New York, 64 NY2d at 230). However, an attorney also possesses, with certain important limitations, the power to bind his or her client to a stipulation of settlement resolving the merits of the litigation (see id.). "[W]ithout a grant of authority from the client, an attorney cannot compromise or settle a claim, and settlements negotiated by attorneys without authority from their clients have not been binding" (id.).

A stipulation of settlement entered into by an attorney will bind his or her client where (1) the attorney has actual authority from the client to settle the claim, or (2), in cases where the settlement exceeds the attorney's actual authority, where the attorney was clothed by the client with apparent authority to enter into the settlement (see Forcelli v Gelco Corp., 109 AD3d 244, 248 [2d Dept 2013] ["A party will be bound by the acts of its agent in settlement negotiations and an agreement will be binding where the agent has either actual or apparent authority"] see also Hallock v State of New York, 64 NY2d at 228 ["A stipulation of settlement made by counsel in open court may bind his clients even where it exceeds his actual authority"]).

Here, there is no explicit evidence in the record that Rosenberg had actual authority to settle the prior litigation on behalf of RPRC (cf. Eastman v Steinhoff, 48 AD3d 738, 739 [2d Dept 2008] [Osterman, an undisclosed principal, was bound where "the written escrow agreement between Eastman and Osterman clearly and unambiguously appointed Eastman as Osterman's special agent for the purpose of resolving the boundary line litigation regardless of the outcome.'"]). Porpora denies that he ever gave Rosenberg the authority to sign the letter agreement, and Rosenberg invoked [*9]the attorney-client privilege when asked whether Porpora gave him actual authority to do so.^[FN2] Moreover, this Court finds that the March 18, 2008 contract between RPRC and Rosenberg, which gave Rosenberg the power to "settle, compromise or release" actions against tenants for, among other things, the nonpayment of rent (see Porpora Motion, Exhibit B), does not explicitly or implicitly, in and of itself, confer actual authority to settle the prior action (cf. Siegel v Kentucky Fried Chicken, 108 AD2d 218 [2d Dept 1985] [discussing requirement that landlord's agent not named in the lease demonstrate proof of authority to terminate a lease] aff'd 67 NY2d 792 [1986]). In light of the foregoing, if the sole ground for enforcement of the letter agreement was Rosenberg's actual authority to settle the claim, this Court would nevertheless find, in fairness, that Rosenberg's silence on the issue necessitates submission of the question of actual authority to a jury (see Siegel, NY Prac § 281 [a motion for summary judgment will be denied "when the fact is one the opposing party cannot know, as where it turns on the scope of the movant's knowledge of his own agent's act"]).

However, a trial need not be ordered on that issue because, as a matter of law, Rosenberg possessed apparent authority to settle the prior litigation. "Apparent authority is the power held by an agent or other actor to affect a principal's legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations" (Restatement [Third] of Agency § 2.03). "Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction" (Hallock v State of New York, 64 NY2d at 231-232).

Here, on July 1, 2009, Porpora and Rosenberg attended settlement negotiations at the office of the plaintiff's principal. Porpora acknowledged that Rosenberg accompanied him as his attorney, and that the purpose of the meeting was to negotiate a price for the sale of the property (Porpora Deposition at 187-189). He testified that he met privately with Rosenberg both before and after the meeting (id. at 192). Rosenberg acknowledges signing the letter agreement, and the plaintiff's attorney and principal detrimentally relied upon that authority when the prior action was withdrawn. Under these circumstances, the Court finds, as a matter of law, that Porpora, by his conduct, clothed Rosenberg with apparent authority to settle the action on behalf of RPRC such that it was reasonable for the plaintiff to rely upon Rosenberg's authority (see Hallock v State of New York, 64 NY2d at 231 ["[A]s a matter of law, [the client] clothed [the attorney] with apparent authority to enter into the settlement. [The attorney] had represented [the clients] through the litigation, engaged in prior settlement negotiations for them and, in furtherance of the authority which had been vested in him, appeared at the final pretrial conference"] Davidson v Metropolitan Trans. Auth., 44 AD3d 819, 819 [2d Dept 2007] [attorney had apparent authority "as a matter of law" where he "had a lengthy involvement in the case, engaging in settlement negotiations and appearing at [*10]pretrial conferences"] Bubeck v Main Urology Assocs., 275 AD2d 909, 910 [4th Dept 2000] ["Because her attorney had a lengthy involvement in the case, engaging in settlement negotiations and appearing at pretrial conferences, he had apparent authority to enter into stipulations as a matter of law"] Javarone v Pallone, 234 AD2d 814, 815 [3d Dept 1996] [clients were bound by settlement of attorney "who had represented them for over three years as of July 1994 and had settled with another defendant on their behalf during this time"] Lynch v Lynch, 122 AD2d 572, 574 [4th Dept 1986] [client clothed his attorney with apparent authority to settle where "[c]ounsel had represented defendant during the litigation and had negotiated on his behalf during the morning settlement discussions"] see also 6A NY Jur Attorneys at Law § 136 ["Authority for an attorney to stipulate to a settlement often becomes apparent as a result of the continuing interaction of client and attorney in regard to the matter being litigated"]).

In opposition, RPRC failed to raise a triable issue of fact with respect to Rosenberg's apparent authority (cf. ER Holdings, LLC v 122 W.P.R. Corp., 65 AD3d 1275, 1277 [2d Dept 2009] ["ER failed to identify any act or word by which Tedesco-Nioras conferred apparent authority upon Tedesco"] Matter of Koss Co-Graphics, Inc. v Cohen, 166 AD2d 649, 650 [2d Dept 1990] ["there were no actions on the part of Co-Graphics or Koss which reasonably gave their attorneys the appearance of having authority to settle the matter"]).

RPRC contends that the letter agreement, which contains an agreement to sell real property, does not satisfy the statute of frauds, since there is no evidence of a signed writing appointing Rosenberg as RPRC's lawful agent to do so (see General Obligations Law § 5-703 [2] ["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 lawful agent thereunto authorized by writing" (emphasis added)] Urgo v Patel, 296 AD2d 376, 377 [2d Dept 2002] Gold v Vitucci, 168 AD2d 607 [2d Dept 1990]).

To the contrary, in the context of litigation, CPLR 2104 permits the settlement of "any matter" by a writing subscribed by a party or his or her attorney (see CPLR 2104; Kolodziej v Kolodziej, 54 AD2d 228, 229 [4th Dept 1976] [referring to CPLR 2104 as an "exception" to the statute of frauds] see Bonnette v Long Island College Hosp., 3 NY 281, 286 [2004] ["The plain language" of CPLR 2104 "directs that the writing itself must be signed by the party (or attorney) to be bound" (emphasis added)] JP Morgan Chase Bank, N.A. v Cellpoint Inc., 54 AD3d 366, 368 [2d Dept 2008] ["The stipulation was signed by his attorney, which was sufficient to bind him personally"]).

An additional point should be made with respect to RPRC's statute of frauds argument. The letter agreement settling the prior action undoubtedly culminated from the plaintiff's attempt to exercise the lease option to purchase the property. "It is the execution of the option agreement, and not the exercise of the option, that is controlling with respect to the application of the Statute of Frauds" (Kaplan v Lippman, 75 NY2d 320, 324 [1990]). "Because an option to purchase an interest in real property is in effect a conditional contract for a future conveyance of land, a contract that creates such an option is within the Statute of Frauds" (id. at 325). Here, there is no dispute that [*11]Porpora signed the lease in 2002 on behalf of RPRC, which granted the option to the plaintiff to purchase the property. Porpora's signature on the lease satisfies the statute of frauds, and the letter agreement could, in the alternative, be viewed simply as an acknowledgment that the option had been exercised rather than a stand-alone contract for the sale of real property (see id. ["Once the optionee gives notice of his intent to exercise the option in accordance with the agreement, the unilateral option agreement ripens into a fully enforceable bilateral contract"]).

Further, there is no basis for setting aside the settlement agreement. "Stipulations of settlement are favored by courts and not lightly cast aside" (Hallock v State of New York, 64 NY2d at 230). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (id.). Here, RPRC has failed to come forward with any evidence of fraud, collusion, mistake or accident to relieve it from being bound by the letter agreement (see e.g. Lynch v Lynch, 122 AD2d at 573 ["A mistaken understanding between defendant and his former counsel of the meaning of the defendant's words . . . is not of a character sufficient to invalidate the settlement agreement"]).

II. The Agreement Contains the Requisite Essential Terms

"If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" (Cobble Hill Nursing Home, Inc. v Henry & Warren Corp., 74 NY2d 475, 482 [1989]). "To satisfy the Statute of Frauds, the writing must set forth the entire contract with reasonable certainty so that the substance thereof appears from the writing alone" (O'Brien v West, 199 AD2d 369, 370 [2d Dept 1993]). "[O]nly reasonable certainty, not absolute certainty, as to the terms of the agreement is required" (id.).

Here, the letter agreement lists the parties, the property to be conveyed, and lists a specific agreed upon price, and therefore, it contains sufficient terms to satisfy the statute of frauds (see Walentas v 35-45 Front St. Co., 20 AD3d 473, 474 [2d Dept 2005] ["To satisfy the statute of frauds, 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"] Atai v Dogwood Realty of NY, Inc., 24 AD3d 695, 697 [2d Dept 2005] ["Generally, a writing may satisfy the statute of frauds and be enforced as a contract where it identifies the parties, describes the subject matter, states all of the essential terms of an agreement, and is signed by the party to be charged"] see also 91 NY Jur Real Property Sales and Exchanges §§ 12-14 [a contract for the sale of real property must identify the property subject to the transaction, identify the parties to the transaction, and state the consideration for the sale]).

The case of Nesbitt v Penalver (40 AD3d 596 [2d Dept 2007]), heavily relied upon by RPRC, is distinguishable on its facts. In that case, the plaintiff, by letter, attempted to accept an offer from [*12]the defendant to purchase certain real property (see id. at 597). However, the offer letter that the plaintiff purportedly accepted stated, in relevant part, "Please call me so that we can discuss the details" (id.). The Second Department held that acceptance of this alleged offer did not form a valid contract of sale, among other reasons, because "the subject letters were not intended to be a complete agreement." By contrast, in the case at bar, the parties expressly contracted that the letter agreement could be enforced absent a subsequent formal contract of sale:

"[T]he terms of this letter agreement shall be binding upon the parties and may be enforceable in the event either party fails or refuses to execute a Contract of Sale, or where otherwise permitted."

RPRC also contends that the letter agreement is unenforceable because it contains no terms of financing, again apparently relying upon Nesbitt. The Court in Nesbitt noted that the letters purportedly comprising the contract "fail[ed] to set forth the manner of payment and financing" (Nesbitt v Penalver, 40 AD3d at 598). However, Nesbitt is again distinguishable on its facts because in that case, the letters comprising the agreement discussed proposed methods of financing other than full payment at closing (see id. at 597 [The second letter stated: "She is now proposing that you take over the mortgage payments and have her name removed from the mortgage and she will take her name off the deed"]). Where a contract for the sale of real property is silent with respect to the terms of financing, it must be assumed simply that there is no contractual provision for financing between the parties, and that the purchaser is expected to tender the entire balance due at closing (see Marder's Nurseries v Hopping, 171 AD2d 63, 74 [2d Dept 1991] [where "performance of [a] contract is not conditioned on the offering, or the taking, of [a] purchase-money mortgage . . . [the purchaser] is presumably obligated to pay cash" (emphasis added)]).

This Court gives great weight to the parties' express declarations to be bound by the letter agreement, particularly in light of the fact that the prior action was withdrawn with prejudice in reliance upon the agreement (see Cobble Hill Nursing Home, Inc. v Henry & Warren Corp., 74 NY2d at 483 ["(P)arties also should be held to their promises and courts should not be pedantic or meticulous' in interpreting contract expressions"]).

The fact that the letter agreement omits some terms, such as a closing date, is not fatal to its enforceability. "The law will presume a reasonable closing date, and the failure to close within that time period constitutes a breach of the covenant of good faith and fair dealing implicit in every contract" (Omar v Rozen, 55 AD3d 705, 705-706 [2d Dept 2008]). Moreover, the law will serve to fill in the remaining essential terms, such as "the quality of title to be conveyed, and the risk of loss between contract and closing" (id.; see General Obligations Law § 5-1311 [Uniform Vendor and Purchaser Risk Act]). [*13]

Finally, the Court finds unavailing RPRC's argument that the plaintiff's own attorneys acknowledged at an early court appearance in this action before Justice Loehr that the sale of the subject property would require the addition of terms to the contract of sale. It is clear that the plaintiff's attorney's statement was made in response to an attempt to settle the entire matter and, therefore, this Court will not consider that statement to be a binding admission against the plaintiff that the letter agreement lacks sufficient terms (Porpora Motion, Exhibit P, at 38-39 [The Court: "Okay, I was trying to resolve it all at once."]).

III. There was no Abandonment of the Letter Agreement

The Court further finds that the record presents no triable issues of fact with respect to RPRC's contentions that the agreement is uneforceable on the ground of abandonment.

"A contract will be treated as abandoned when one party acts in a manner inconsistent with the existence of the contract and the other party acquiesces in that behavior" (Savitsky v Sukenik, 240 AD2d 557, 559 [2d Dept 1997], quoting 91 NY Jur 2d, Real Property Sales and Exchanges § 146; see EMF General Contracting Corp. v Bisbee, 6 AD3d 45, 49-50 [1st Dept 2004]). "To establish abandonment of a contract by conduct, it must be shown that the conduct is mutual, positive, unequivocal, and inconsistent with the intent to be bound" (Rosiny v Schmidt, 185 AD2d 727, 732 [1st Dept 1992]). "The party who asserts abandonment has the burden of establishing it since the termination of a contract is not presumed" (id.).

Here, RPRC has failed to come forward with any evidence of affirmative conduct by either party unequivocally conveying an abandonment of the contract. To the contrary, the plaintiff's principal attempted in March 2011 to exercise the option pursuant to the letter agreement, and again reiterated his desire to purchase the property in letters as the lease term was nearing its end in early 2012. The record indicates that RPRC's principal was, if anything, silent in the face of the plaintiff's attempts to purchase the property, which conduct does not amount to a "mutual" or "positive" abandonment. Notably, shortly after RPRC entered into a contract to sell the property to Gas Land, the plaintiff commenced this action to enforce the letter agreement (see EMF General Contracting Corp. v Bisbee, 6 AD3d at 50 ["here there was no showing that EMF either took any affirmative steps inconsistent with the contract, nor that it acquiesced in any steps taken by Bisbee in disaffirming the contract] cf. Savitsky v Sukenik, 240 AD2d at 559-560 ["upon discovering on September 28, 1994, the impending sale of the property to a third party, she took no steps to enforce or preserve her rights under the contract with Sukenik or to prevent the execution of Sukenik's contract with the third party"]).

Accordingly, the branches of the separate motions of RPRC and Gas Land which are to dismiss the action as abandoned are denied. Moreover, upon searching the record and viewing the proof in the light most favorable to RPRC, the Court awards the plaintiff summary judgment dismissing the defendants' affirmative defense of abandonment (see Meadowbrook Farms Homeowners Assn., Inc. v JZG Resources, Inc., 105 AD3d 820, 822 [2d Dept 2013] [searching the record and awarding the plaintiff summary judgment dismissing affirmative defense]). [*14]

IV. The Action is not Barred by Laches

The plaintiff's suit is not barred by the doctrine of laches.

"The defense of laches, in a suit for specific performance, is to be considered wholly independent of the Statute of Limitations. Although the action is brought within the period prescribed by the statute, it may have been so delayed as to preclude the granting of equitable relief, and, if so, the complainant must be relegated to his action at law for damages" (Groesbeck v Morgan, 206 NY 385, 389 [1912] see Richardson v Vajiradhammapadip Temple, 24 AD3d 649, 650 [2d Dept 2005]).

"The essential element of this equitable defense is delay prejudicial to the opposing party" (Matter of Barabash, 31 NY2d 76, 81 [1972] [emphasis added] see Cohen v Krantz, 227 AD2d 581, 582 [2d Dept 1996] Dwyer v Mazzola, 171 AD2d 726, 727 [2d Dept 1991]). Here, RPRC has shown no prejudice, other than finding another buyer for the property who is willing to pay more. "[An] increase in market value of the property does not in itself create injustice or inequity" (EMF General Contracting Corp. v Bisbee, 6 AD3d at 55; see 91 NY Jur Real Property Sales and Exchanges § 252). Moreover, it is the contract vendee who generally bears the risk that the property will increase or decrease in value during the contract period (EMF General Contracting Corp. v Bisbee, 6 AD3d at 55 ["As between the two parties, it is EMF, the contract vendee, that is entitled to benefit from the increase in the value of the property"]). In any event, RPRC has not come forward with competent evidence that the appraised value of the property has increased from the time that the parties entered into the letter agreement; rather, it has only shown that a single purchaser is willing to pay more.

Under the circumstances, the plaintiff's delay was not unreasonable (see Savitsky v Sukenik, 240 AD2d at 558 ["What constitutes a reasonable time to perform turns on the facts and circumstances of the case"] see also Groesbeck v Morgan, 206 NY at 389). Here, the plaintiff already occupied the premises as a tenant paying rent to RPRC when the parties entered into the letter agreement and, thus, there was clearly no perceived urgency to close so that the plaintiff could enter the premises. Further, when the parties originally entered into the letter agreement in July 2009, RPRC's attorney suggested a January 2010 closing date. The next documented communication regarding the sale was the letter from the plaintiff's principal to Porpora in March 2011, followed by further communications in January 2012. Despite receiving these notices, RPRC never attempted to affirmatively repudiate the letter agreement until the instant action was commenced. On the whole, viewed in the light most favorable to RPRC, the plaintiff's delay was not so unreasonable as to deny it the remedy of specific performance (see Wilkenson v Hoelscher, 163 AD2d 819 [2d Dept 1990] [action to compel specific performance of real property not barred by laches where plaintiff waited approximately two years after alleged breach to commence the action] see also Zwarycz v Marnia Construction, Inc., 102 AD3d 774 [2d Dept 2011] [doctrine of laches did not bar suit where plaintiff waited 4 1/2-years after cause of action accrued to commence suit] Maddalena v Pandolfo, 208 AD2d 907 [2d Dept 1994] [action not barred by 14-month delay] cf. Noy v 765 9th Avenue Corp., 281 AD2d 232 [1st Dept 2001] [laches barred specific performance [*15]action where the plaintiff delayed by "nearly 10 years"]).

Moreover, the plaintiff's continual communications put RPRC on notice that it would assert its rights under the letter agreement (see Cohen v Krantz, 227 AD2d at 583 ["Based on the evidence, the defendants were on notice that the plaintiffs would assert their claim for relief"] see also Weiss v Mayflower Doughnut Corp., 1 NY2d 310, 319-320 [1956] [in a suit to enforce a restrictive covenant, the defendant could not assert laches where it was shown that he knew that the plaintiff would seek to enforce the covenant]).

Accordingly, upon searching the record, the plaintiff is entitled to summary judgment dismissing the affirmative defense of laches.

V. Specific Performance

Although the letter agreement is a valid contract of sale, and the action is not barred by the defendants' equitable defenses, the Court cannot determine whether the plaintiff is entitled to specific performance on this record.

"The elements of a cause of action for specific performance of a contract are that the plaintiff substantially performed its contractual obligations and was willing and able to perform its remaining obligations, that defendant was able to convey the property, and that there was no adequate remedy at law" (EMF General Contracting Corp. v Bisbee, 6 AD3d at 51). Where neither party makes time of the essence, the plaintiff is only required to show that it was ready willing and able to close "within a reasonable time" (see DiBartolo v Battery Place Associates, 84 AD3d 474, 475 [1st Dept 2011] Gindi v Intertrade International Ltd., 50 AD3d 575, 575 [1st Dept 2008] Paglia v Pisanello, 15 AD3d 373 [2d Dept 2005] [purchaser demanding specific performance must show that "he or she was ready, willing, and able to perform on the original law day, or, if time was not of the essence, on a subsequent date fixed by the parties or within a reasonable time thereafter"]).

"When a purchaser submits no documentation or other proof to substantiate that it had the funds necessary to purchase the property, it cannot prove, as a matter of law, that it was ready, willing, and able to close" (Fridman v Kucher, 34 AD3d 726, 728 [2d Dept 2006]). Here, the plaintiff has submitted no documentation or other proof substantiating that it possessed the funds or had access to credit enabling it to purchase the property (see id.; see also Provost v Off Campus Apartments Co., II, 211 AD2d 850, 851 [3d Dept 1995] ["The record reveals that plaintiffs submitted no documentation or other proof to substantiate their assertion that they had the funds necessary to purchase the property and, thus, are unable to prove they were ready, willing, and able to close the sale as a matter of law"] cf. Gindi v Intertrade International Ltd., 50 AD3d at 576 ["plaintiff submitted documentation that the $1,500,000 due at closing was available to him, and there is no evidence that he was not prepared to execute the 90-day purchase money mortgage at closing"]).

Conversely, RPRC has not come forward with evidence establishing that the plaintiff lacked [*16]the financial ability to close, and therefore, neither party is entitled to summary judgment with respect to the cause of action for specific performance (see ADC Orange, Inc. v Coyote Acres, Inc., 7 NY3d 484, 490 [2006] ["On this record, [the plaintiff] is not entitled to specific performance as a matter of law . . . [b]ut neither is [the defendant] entitled to dismissal of [the plaintiff's] claim for specific performance"]).

VI. Tortious Interference with Contract

Gas Land contends that the fifth cause of action alleging that it tortiously interfered with the plaintiff's contract to purchase the real property from RPRC should be dismissed because there was no valid contract of sale between those parties (see Moulton Paving, LLC v Town of Poughkeepsie, 98 AD3d 1009 [2d Dept 2012]). However, as discussed above, the letter agreement constituted a binding contract of sale. Gas Land has offered no other arguments in support of the branch of its motion which is for summary judgment dismissing the fifth cause of action, and thus, that branch of its motion is hereby denied (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985] ["Failure to make (a prima facie) showing requires denial of the motion, regardless of the sufficiency of the opposing papers"]).

VII. Conspiracy

As the defendants correctly argue, New York does not recognize an independent cause of action for conspiracy (see Rivera v Greenberg, 243 AD2d 697, 698 [2d Dept 1997] ["the Supreme Court should have dismissed the plaintiff's thirtieth cause of action, which alleges conspiracy to defame, since New York does not recognize civil conspiracy as an independent tort"]). Accordingly, the defendants are entitled to summary judgment dismissing the sixth cause of action.

VIII. Prima Facie Tort

The defendants have met their prima facie burden for summary judgment dismissing the seventh cause of action, which sounds in prima facie tort. "The elements of a cause of action alleging prima facie tort are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful" (Epifani v Johnson, 65 AD3d 224, 232 [2d Dept 2009]). "[T]here is no recovery in prima facie tort unless malevolence is the sole motive for defendant's otherwise lawful act or . . . unless defendant acts from disinterested malevolence'" (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983]). Here, while the record demonstrates that RPRC may have inflicted harm on the plaintiff by attempting to breach the contract, under no view of the evidence could it be said that RPRC did so out of disinterested malevolence (see Lancaster v Town of E. Hampton, 54 AD3d 906, 908 [2d Dept 2008]). Since the plaintiff has failed to raise a triable issue of fact with respect to its cause of action sounding in prima facie tort, the defendants are entitled to summary judgment dismissing the seventh cause of action (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1980]).

[*17]CONCLUSION

In summary, the plaintiff is entitled to summary judgment on its first cause of action which seeks a declaration that the 2009 letter agreement is a valid contract of sale enforceable against RPRC,^[FN3] and summary judgment dismissing the defendants' affirmative defenses based on the statute of frauds, abandonment, and laches. There is an issue of fact as to whether the plaintiff is entitled to specific performance. Gas Land has failed to establish that it is entitled to dismissal of the tortious interference cause of action, but the defendants are entitled to summary judgment dismissing the sixth and seventh causes of action sounding in conspiracy and prima facie tort.

Based upon the foregoing, it is hereby

ORDERED that the branches of the separate motions of the defendants Robert Porpora Realty Corp., Robert Porpora, and Robert Porpora, Inc., and the defendants Majed Nesheiwat and Gas Land Petroleum, Inc., which are for summary judgment dismissing the plaintiff's sixth and seventh causes of action sounding in conspiracy and prima facie tort are granted, and the motions are otherwise denied; and it is further,

ORDERED that, upon searching the record, summary judgment is awarded to the plaintiff dismissing the defendants' affirmative defenses premised upon the statute of frauds, abandonment, and laches; and it is further,

ORDERED that the branch of the plaintiff's motion which is for summary judgment on its first cause of action is granted, and the plaintiff is entitled to a declaration that the July 1, 2009 letter agreement is a valid and enforceable contract for the sale for the subject property; and it is further

ORDERED that the branch of the plaintiff's motion which is for summary judgment on its second cause of action for specific performance is denied; and it is further

ORDERED that the parties are directed to appear in the Settlement Conference Part on March 13, 2014, at 9:30 a.m., in Courtroom 1600 of the Westchester County Courthouse at 111 Dr. Martin Luther King, Jr., Boulevard, White Plains, New York 10601; and it is further

ORDERED that all other relief requested and not decided herein is denied.

This constitutes the decision and order of the Court.

Dated: White Plains, New York

January 7, 2014 [*18]

HON. FRANCESCA E. CONNOLLY, J.S.C.