Papers Submitted:

Notice of Motion (Mot. Seq. 01)...................x

Memorandum of Law....................................x

Memorandum of Law in Opposition.............x

Reply Memorandum of Law..........................x

Memorandum of Law....................................x

Reply Memorandum of Law..........................x

Memorandum of Law....................................x

Reply Memorandum of Law..........................x

Notice of Motion (Mot. Seq. 02)...................x

Affirmation in Opposition.............................x

Memorandum of Law in Opposition.............x

Reply Memorandum......................................x

Notice of Motion (Mot. Seq. 03)...................x

Memorandum of Law....................................x

Affirmation in Opposition.............................x

Reply Memorandum of Law..........................x

Notice of Motion (Mot. Seq. 04)...................x

Memorandum of Law....................................x

Affirmation in Opposition.............................x

Memorandum of Law in Opposition.............x

Reply Memorandum of Law..........................x

Upon the foregoing papers, the Motion (Mot. Seq. 01) pursuant to CPLR § 3212 by the Plaintiff, Long Island Compost Corp., seeking an Order granting: (1) partial summary judgment on its claims as against all named Defendants; (2) dismissing the counterclaims interposed by the Defendant, Alan Marolf, or in the alternative; (3) dismissing stated portions of the Defendant, Marolf's counterclaims; the Motion (Mot Seq. 02) pursuant to CPLR § 3212 by the Defendant, Shamrock Materials, LLC, seeking summary judgment dismissing the complaint insofar as interposed as against it; the Motion (Mot Seq. 03) pursuant to CPLR § 3212 by the Defendant, Navillus Tile, Inc., d/b/a/, Navillus Contracting, seeking summary judgment dismissing the seventh and eighth causes of action interposed as against it; and the Motion (Mot. Seq. 04) pursuant to CPLR § 3212 by the Defendant, Alan Marolf, seeking summary judgment: (1) dismissing the [*2]complaint insofar as interposed as against him; and (2) granting him summary judgment on the issue of liability with respect to his counterclaims, are determined as hereinafter provided.

In 2009, the Defendant, Navillus Tile, Inc., d/b/a, Navillus Contracting, ("Navillus") submitted a competitive bid for certain construction work to be performed for the Port Authority of New York and New Jersey ("Port Authority"), at the National World Trade Center Memorial Garden in New York City. The approximately $15.5 million Port Authority job required the successful bidder to acquire significant quantities of so-called "structural" or "engineered" soil, which would then be used to construct a tree-populated plaza or platform comprising part of the memorial display garden.

In order to formulate its bid, the Defendant, Navillus, needed to retain a soil vendor capable of supplying and mixing the special blend of engineered soil required by the Port Authority contract. It ultimately located the Plaintiff, Long Island Compost Company, ("Compost") as a potential soil vendor through its contacts with Compost's then-employee, the Defendant, Alan Marolf. With assistance from the Defendant, Marolf, who later functioned as Compost's key contact person with Navillus, Compost submitted a price proposal to Navillus of $90.00 per cubic yard for the engineered soil blend then specified by the Port Authority. Navillus thereafter incorporated that price quote into what ultimately became its successful bid to the Port Authority.

A dispute subsequently arose in November, 2010, when the Port Authority modified the soil blend on which Compost had based its original, $90.00 per cubic yard estimate, i.e., the same $90.00 price also used by Navillus to formulate its successful bid and profit margin for the job. Prior to this point, Compost had made certain deliveries of the modified blend and invoiced those deliveries at a price exceeding its original, $90.00 estimate. Navillus, however, advised Compost that it would not pay a unit price over and above the $90.00 amount unless and until the Port Authority first authorized those increases.

Thereafter, and although Navillus submitted price increase "change order requests", Port Authority approvals were not forthcoming with any degree of alacrity or at a revised unit price satisfactory to Compost. In response, Compost informed Navillus that it could not make any further deliveries unless it received payment at its higher invoiced prices, i.e., up to $119.00 per cubic yard. Since Compost was then threatening to suspend deliveries and because Navillus was facing its own hard deadline constraints and had yet to obtain satisfactory change order consent from the Port Authority with respect to one of the "most widely observed construction project[s] on earth," (Memorandum of Law in support of Marolf motion [Mot. Seq. 04, p. 7]) Navillus elected to terminate its involvement with Compost (which had delivered some 9,000 cubic yards at that point).

With the Defendant, Marolf's assistance, Navillus located another soil vendor to provide its remaining contract soil requirements (approximately 16,000 cubic yards); namely, Defendant, Shamrock Materials, LLC ("Shamrock"). Although Navillus acquired the remaining contract soil amounts from Shamrock, it paid Compost in full (and at Compost's higher invoiced prices), for all of the soil Compost had previously supplied up to that point, including any mixed soils then stored or remaining at Compost's yard. According to Compost, in July, 2010, several months before the November 2010 price dispute arose, Marolf resigned from his employ with Compost to seek new opportunities as an independent contractor, but allegedly agreed that he would continue to represent Compost as its agent on the Navillus job and also "manage" the Navillus contract on Compost's behalf. Notably, the record indicates that neither Navillus nor Compost ever [*3]signed a formal, written agreement memorializing the terms of whatever contractual relationship they intended to create. Nor did they execute an agreement which otherwise integrated and/or linked Compost's performance to Navillus' obligations under the Port Authority contract. The only written documents addressing the terms of the parties' alleged soil supply agreement are: (1) an unsigned purchase order dated August, 2010 (drafted by Navillus and only supplied to Compost after the price dispute arose) and (2) an unsigned, draft subcontract which was never circulated to Compost.

Thereafter, Compost commenced the within action as against Navillus, Shamrock and Alan Marolf, its former employee, who has also interposed counterclaims as against Compost for commissions allegedly due and owing. Among other things, Compost alleges that Marolf acted disloyally by assisting Navillus in locating Shamrock after the parties' price dispute arose in November of 2010; that Navillus breached the alleged soil supply agreement by refusing to purchase the remaining contract amounts from Compost; that Navillus tortiously interfered with the Marolf/Compost agency agreement; and that Shamrock and Marolf similarly interfered with the Compost/Navillus agreement.

The parties now move and cross-move for summary judgment on their respective claims and counterclaims, including the pivotal seventh cause of action for breach of contract, as interposed against Navillus.

With respect to that latter, breach of contract claim, it is settled that when assessing "whether the parties entered into a contractual agreement * * * it is necessary to look * * * to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds" — albeit without placing "disproportionate emphasis * * * on any single act, phrase or other expression, (Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 NY2d 397, 399 [1977] see, Zheng v. City of New York, supra, 19 NY3d 556, 574 [2012] Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 NY2d 584, 589-590 [1999] Martin Delicatessen v. Schumacher, 52 NY2d 105, 109-110 [1981]). Significantly, "[m]utual assent evincing the intention of the parties to form a contract is essential" (Miranco Contr., Inc. v Perel, 29 AD3d 873, 874 [2d Dept. 2006]) and while the "concept of definiteness" can be elusive and is not to be applied rigidly (Cobble Hill Nursing Home, Inc. v. Henry and Warren Corp., 74 NY2d 475, 483 [1989] 166 Mamaroneck Ave. Corp. v. 151 East Post Road Corp., Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd., 78 NY2d 88, 90-92 [1991]). Nevertheless, "[a]n agreement to agree, which leaves material terms of a proposed contract for future negotiation, is unenforceable" (Maffea v. Ippolito, 247 AD2d 366, 367 [2d Dept. 1998] see, Martin Delicatessen v. Schumacher, supra, 52 NY2d at 109; Mainline Elec. Corp. v. Pav-Lak Industries, Inc., 40 AD3d 939 [2d Dept. 2007]).

Price is a material contract term (DerOhannesian v. City of Albany, 110 AD3d 1288 [3d Dept. 2013] Tufano v. Morris, 286 AD2d 531, 534 [3d Dept. 2001]), and where the provisions of an alleged agreement contract are so inconclusive or indefinite with respect to that key term that the Court cannot enforce it, no binding obligation will result (DerOhannesian v. City of Albany, supra, 110 AD3d at 1290). Although Courts will generally enforce contracts where an underlying agreement exists and the parties, by express reservation, leave other terms for future negotiation (Gallagher v. Long Island Plastic Surgical Group, P.C., 113 AD3d 652 [2d Dept. 2014] Aiello v. Burns Intern. Sec. Services Corp., 110 AD3d 234, 243 [1st Dept. 2013]), they must also "be wary of trapping parties in surprise contractual obligations that they never intended' to undertake" (Adjustrite Systems, Inc. v. GAB Business Services, Inc.,145 F.3d 543, 548 [2nd Cir. 1998], quoting [*4]from, Teachers Ins. and Annuity Ass'n of America v. Tribune Co., 670 F.Supp. 491, 497 [S.D.N.Y.1987]).

With these principles in mind, the Court agrees that Navillus has prima facie demonstrated its entitlement to dismissal of the seventh cause of action for breach of contract by establishing, inter alia, that the parties failed to reach a meeting of the minds or any binding agreement requiring Navillus to acquire its remaining contract soil requirements from Compost(see, East Hampton Union Free School Dist. v. Sandpebble Builders, Inc., 90 AD3d 815, 819-820 [2d Dept. 2011]).

Although the record suggests that the parties may initially have hoped or anticipated that they would work together in fulfilling all of Navillus' project soil supply needs, the evidence does not support the assertion that they bound themselves to do so, in futuro, in light of the circumstances which later evolved when the Port Authority altered its soil blend requirements. Nor is there anything in the record, apart from speculation, conjecture or an entirely "new expression by the parties" , upon which an acceptably definite and agreed-upon methodology for pricing the disputed soil quantities can be based (cf., Cobble Hill Nursing Home v. Henry & Warren Corp., supra, 74 NY2d 475, 483; Martin Delicatessen v. Schumacher, supra, 52 NY2d at 109-110). Moreover, the inconclusive evidence belies the inference that there was an express reservation of relevant contract terms for future negotiation (IDT Corp. v. Tyco Group, S.A.R.L., supra, 13 NY3d 209, 214). Rather, and at best, there existed an amorphously defined and inconclusively documented — if it was documented at all — understanding with respect to an initially projected quantity of engineered soil to be supplied at an ultimately superseded price of some $90.00 per cubic yard. In sum and upon the vacant contractual landscape created by the parties, the subsequent price impasse which ensued was ultimately attributable to a series of events for which the parties did not bargain, either expressly or impliedly.

Compost's reliance to the contrary upon, inter alia, the unsigned and uncirculated draft subcontract and the August 2010 purchase order, as evidence that a binding agreement nevertheless arose with respect to the remaining contact amounts, is misplaced. Those unexecuted documents include: (1) a cryptically framed, one-sided purchase order with both signature lines left blank, which expressly limits the price to $90.00 per cubic yard; and (2) a half-page draft subcontract, reciting the same $90.00 price, which was never executed by the parties and apparently never even delivered to Compost.

While even unsigned purchase orders can be enforceable as binding contracts — if sufficiently detailed (LMIII Realty, LLC v. Gemini Ins. Co., 90 AD3d 1520 [4th Dept. 2011] Kay-Bee Toys Corp. v. Winston Sports Corp., 214 AD2d 457 [1st Dept. 1995]), the subject purchase order is, if anything, particularly notable for its striking lack of specificity and detail, since it does not even generically detail or describe how and when the alleged contract was to be performed. Similarly unpersuasive is the alternative theory that Navillus was nevertheless obligated by an unwritten, but allegedly binding duty of good faith to, among other things, negotiate more comprehensively than it actually did before finally terminating its commercial relationship with Compost (cf., East Hampton Union Free School Dist. v. Sandpebble Builders, Inc., supra, 90 AD3d at 819-820). Every contract contains an implied covenant of good faith and fair dealing which precludes one party from destroying other party's rights to "receive the fruits of the contract" (see, 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 153 [2002] Dalton v. Educational Testing Serv., 87 [*5]NY2d 384, 389 [1995] see also, IDT Corp. v. Tyco Group, S.A.R.L., supra, 13 NY3d 209, 214 [2009]). That duty is not, however, without limit, since no obligation can be implied that would be otherwise "inconsistent with other terms of the contractual relationship' " (Staffenberg v. Fairfield Pagma Associates, L.P., 95 AD3d 873, 875 [2d Dept. 2012] see, 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 153 [2002] Dalton v. Educational Testing Serv., supra, 87 NY2d 384; Trump on Ocean, LLC v. State, 79 AD3d 1325, 1326 [3rd Dept. 2010]). Moreover, an implied obligation can only be invoked in aid and furtherance of the existing terms contained in the parties' agreement (Hixon v. 12-14 East 64th Owners Corp., 107 AD3d 546 [1st Dept. 2013] Trump on Ocean, LLC v. State, supra, 79 AD3d at 1326).

At bar, the record does not support the conclusion that Navillus acted in bad faith to deprive Compost of any identifiable, contract benefits to which it was otherwise entitled. Indeed, the evidence establishes that the parties never crafted or agreed upon contract terms which conferred any specific benefits upon Compost with respect to the remaining soil quantities sued upon. In this respect, the August 2010 purchase order is virtually devoid of narratively recited terms and conditions, and lacks any meaningful, descriptive content detailing precisely how the alleged contract was to be performed. Additionally, and putting aside the fact the both the purchase order and the subcontract are unsigned, neither contains terms which address the parties' duties and obligations, if any, in the event that circumstances altered the relevance of the expressly stated contract price term. Compost's strained assertion that a binding or agreed-upon pricing formula can be somehow extrapolated or implied from, among other things, the unsigned subcontract, is lacking in merit, as the inconclusive language it relies upon does not support that claim and neither requires nor directs Navillus to do anything with respect to the issue of price.

Moreover, the record belies the contention that either party was deliberately attempting to frustrate the other's alleged rights. Rather, and if anything, the evidence suggests that both were motivated by ostensibly legitimate business considerations generated by the serendipitous occurrence of events beyond their control (cf., Carvel Corp. v. Noonan, 3 NY3d 182, 190 [2004]). These events, for which, despite being ostensibly counseled, sophisticated commercial entities, they failed to create any governing, contractual mechanism, specifically, the Port Authority's soil alterations and its subsequent impact upon the parties' commercial relationship. Indeed, even upon the occurrence of that contingency, Navillus still offered Compost a final opportunity to match Shamrock's price, an offer which Compost was either unable or unwilling to accept.

In any event, and even assuming that some sort of unwritten, agreement to acquire additional soil at an unspecified and indeterminate price can be inferred from the record, the evidence supports the alternative conclusion that Compost itself rejected and/or repudiated any alleged agreement, i.e., that it affirmatively apprised Navillus, before Shamrock was selected as its replacement, that it would not make any additional deliveries unless it was paid a significantly higher, invoiced unit price for any future soil deliveries (cf., Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 AD3d 804, 806-807 [2d Dept. 2011] see generally, Long Is. R.R. Co. v. Northville Indus. Corp., 41 NY2d 455, 463 [1977]). Compost's attenuated theory that Navillus should have known that its threat to suspend deliveries was nothing more than a bargaining "ploy" is lacking in merit. Rather, Navillus was plainly entitled to take Compost at its word, despite Compost's current claim that, in reality, its true (but unstated) intent was supposedly something entirely different from what it was actually telling Navillus. [*6]

As such, Compost's motion for summary judgment on its seventh cause of action for breach of contract should be DENIED and Navillus' related motion to dismiss that cause of action should be GRANTED.

The branch of Navillus' motion which seeks to dismiss the eighth cause of action, sounding in tortious interference with contract, should also be GRANTED. The bare-boned eighth cause of action does not, at least as pleaded, actually allege that Navillus procured the "breach" of any specific contract (Lama Holding Co. v. Smith Barney Inc., 88 NY2d 413, 424 [1996]), but rather, it obliquely avers that Navillus' "intentional acts" caused the "termination" of the "independent contractual relationship" between Marolf and Compost, thereby purportedly causing damage (presumably lost profits) to Compost in the sum of $1 million dollars (Complaint, ¶¶ 56-58). Significantly, while the complaint suggests that Navillus caused the termination of whatever, unwritten, post-employment relationship Compost had with Marolf (Complaint, ¶ 56), Compost itself actually terminated Marolf in May of 2011, well after it learned of his allegedly disloyal acts, and only after Marolf declined to execute a proposed, independent contractor agreement (containing restrictive covenants), which was drafted by Compost and which would actually have maintained and continued Compost's relationship with Marolf.

In any event, the elements of a cause of action for tortious interference with contract are the existence of a valid contract between the plaintiff and a third party, the defendant's knowledge of that contract, the defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom (Lama Holding Co. v. Smith Barney Inc., supra, 88 NY2d 413, 424; Foster v. Churchill, 87 NY2d 744, 749 [1996] Kronos, Inc. v. AVX Corp., 81 NY2d 90, 94 [1993]).

Here, while presumably intended as a claim that Navillus induced Marolf to breach his unwritten agreement with Compost, the gravamen of Compost's interference theory alleges, in reality and effect, that Navillus interfered with its own contract; namely, the alleged soil supply contract with Compost. It is settled, however, that a party cannot be liable for interfering with its own contract (see, LHR, Inc. v. T-Mobile USA, Inc., 112 AD3d 1293, 1298 [4th Dept. 2013] Ahead Realty LLC v. India House, Inc., 92 AD3d 424 [1st Dept. 2012]). More particularly, and as amplified by its own submissions, Compost claims inter alia, that Navillus improperly contacted Shamrock (through Marolf); gave Shamrock, "Compost's documents" so that Shamrock could more readily obtain the Navillus supply contract; and then ultimately and improperly awarded the contract to Shamrock, thereby depriving Compost of the future profits it would have earned if these events had never taken place to begin with, i.e., Compost's claims and injuries effectively and primarily derive from Navillus' own, purported misconduct in allegedly breaching the soil supply agreement, not because Compost's agreement with Marolf was "terminated", as circuitously alleged in Compost's complaint (see, Complaint, ¶ 56).

The remaining causes of action as interposed against Marolf and Shamrock, all sounding in tort, are uniformly linked by, and are ultimately dependent upon, the same foundational breach of contract theory which the Court has now rejected; namely, the theory that a binding contract between Navillus and Compost to supply the remaining soil amounts necessarily existed; that Marolf and/or Shamrock, thereafter tortiously disrupted that contract, either by interfering with it (Shamrock, forth though sixth causes of action), or through disloyal or otherwise improper conduct (first through fourth and sixth causes of action); and that by virtue of that purported wrongdoing, the [*7]Defendants therefore damaged Compost by depriving it of, inter alia, the alleged profits it would have made had the misconduct never occurred. However, in light of the Court's holding to the contrary, i.e., that there was no binding agreement with respect to the soil amounts on which Compost's breach of contract claim is predicated, the Court finds that the above-referenced claims, as interposed against Shamrock and Marolf, must also be dismissed.

Lastly, the branch of the Defendant, Marolf's cross-motion which seeks partial summary judgment on liability with respect to his commissions counterclaims should be GRANTED. Apart from relying upon, inter alia, its "faithless servant" and interference claims, which the Court has now dismissed, Compost has not meaningfully disputed Marolf's contentions that the commissions sued upon were earned, and are now due and owing. The Court disagrees with Compost's strained theory that Marolf somehow lacks standing to assert his entitlement to the commissions because he agreed to pay certain commission amounts to a third party, i.e., the "Dirt Company," as part of a separately negotiated arrangement with that entity (Compost Main Brief at 6-7; 29; Reply Brief at 6-7).

The Court has considered the Compost's remaining contentions and concludes that they are insufficient to otherwise defeat the Defendants' respective motions for summary judgment.

Accordingly it is,

ORDERED, that motions (Mot. Seq. 02, 03, 04) pursuant to CPLR § 3212 by the Defendants, Navillus Tile, Inc., d/b/a/, Navillus Contracting, Alan Marolf and Shamrock Materials, LLC, seeking summary judgment dismissing the complaint insofar as interposed against them, is GRANTED; and it is further

ORDERED, that the branch of the motion (Mot. Seq. 04) by Alan Marolf seeking partial summary judgment on his claim for commissions due and owing, is GRANTED; and it is further

ORDERED, that the motion (Mot. Seq. 01) seeking summary judgment by the Plaintiff, Long Island Compost Corp., is DENIED.

This constitutes the order and judgment of this court.

DATED:Mineola, New York

February 18, 2014

________________________________

Hon. Randy Sue Marber, J.S.C.