In 2002, defendant Allen Bogart (hereinafter Bogart) purchased property located at 60 North Street in the Town of Granville in Washington County. The property consists of 14.7 acres of land on which is situated a house (hereinafter property).^[FN1] On June 6, 2022, defendant Kenneth L. Thomas, III (hereinafter Thomas) purchased the property from Bogart for $75,000.00 and the deed evidencing the transfer was recorded in the Washington County Clerk's Office on June 13, 2022 (NYSCEF Doc. No. 132).

Plaintiffs allege that on May 10, 2021, plaintiff John McClure (hereinafter Plaintiff John) entered into a contract with Bogart for the renovation of a bathroom located at Bogart's residence at 62 Mettowee Street, in the Town of Granville (hereinafter Bathroom Contract) (NYSCEF Doc. No. 6). The cost of the renovation was $8,000.00 and Bogart made an initial payment of $6,100.00. Plaintiff John alleges Bogart failed to pay the full amount owed under the Bathroom Contract. Plaintiffs do not make a claim under the Bathroom Contract but instead reference it claiming the balance due, $1,900.00, was to be used as a part of the down payment on the property. (NYSCEF Doc. No. 151, ¶8) As discussed below, plaintiffs' inclusion and reference to the Bathroom Contract is largely irrelevant to the actual claims—except as an apparent attempt to improperly insert Plaintiff John, in his individual capacity, into this case.

Plaintiffs further allege that they entered into a second contract with Bogart on May 27, 2021, although this agreement titled "Preliminary Contract for Deed" (hereinafter Contract for [*2]Deed) was only between Bogart and Plaintiff Patricia McClure (hereinafter Plaintiff Patricia) only (NYSCEF Doc. No. 7). Plaintiffs allege under the Contract for Deed, plaintiffs would perform additional demolition and renovation services at 62 Mettowee, estimated at $34,300.00, in exchange for Bogart conveying a one-acre portion of the property that contained the house and then-existing barn to Plaintiff Patricia for a purchase price of $60,000.00. Plaintiffs attach to the Contract for Deed an unsigned estimate detailing the work to be performed by nonparty McClure and Son's Construction LLC dated May 26, 2021 (NYSCEF Doc. No. 7, pgs. 9-10). Plaintiff John was not a party to the Contract for Deed or the attached estimate, he is not a signatory, nor is he referenced in either document.

It is plaintiffs' contention that from May 2021 through September 2021, Bogart changed the scope of the renovation project, causing plaintiffs to incur over $100,000.00 in costs associated with 62 Mettowee. Plaintiffs also allege, "[i]n or around June 2021, relying on the Contract for Deed, Plaintiff John and his family made the property their primary residence and began to improve the same". (NYSCEF Doc. No. 4, ¶34) Plaintiffs' state that, "between June 2021 to July 2022, relying on the Contract for Deed, [p]laintiffs undertook home renovation projects to improve the property" at a cost of $315,919.44. (id. at ¶35-36) Plaintiffs further assert, "[d]espite [d]efendant Bogart's order to cease work under the Contract for Deed, [p]laintiffs were willing, able and ready to close on the property" and tried to pay Bogart the outstanding purchase price, but Bogart refused to accept it. (id. at ¶37-41)

Plaintiffs learned of Thomas' intent to purchase the property from Bogart in September 2021 and provided Thomas with a copy of the Contract for Deed. The property was, nevertheless, conveyed to Thomas, as noted above, and on June 27, 2022 Thomas commenced an eviction proceeding against Plaintiff John in Granville Town Court. On July 8, 2022, plaintiffs commenced this action with the filing of a summons with notice.

The verified complaint, filed on August 5, 2022, asserts eight causes of action: 1) breach of contract against Bogart for failing to convey the property to plaintiffs, (2) prima facie tort against Bogart for intentionally causing economic harm to plaintiffs, (3) alleging defendant Thomas intentionally interfered with the Contract for Deed between Bogart and plaintiffs, (4) conversion of Patricia McClure's right to exclusive dominion, control and enjoyment of the property by Bogart when he sold it to Thomas and Thomas's resulting occupation of the property, (5) fraudulent misrepresentation by Bogart, (6)declaratory judgment to determine the parties' rights to the property, (7) estoppel and (8) quasi contract.

On or about February 10, 2025, Patricia McClure passed away. On June 20, 2025, Washington County Surrogate Court decreed John McClure as the Executor of the Estate of Patrica A. McClure. By motion dated August 7, 2025, Plaintiff John seeks an order substituting "John McClure as Executor of the Estate of Patricia A. McClure" in place and stead of plaintiff "Patricia McClure" (Mot. Seq. #11). Upon review of the motion and supporting papers, and having received no opposition, the Court grants the Plaintiff John's motion for substitution pursuant to CPLR 1021 and the caption is amended hereinabove to read as follow:

Also before the Court are defendant Thomas' motion for summary judgment pursuant to CPLR §3212 (Mot. Seq. #7), defendant Bogart's motion for summary judgment (Mot. Seq. #8), and Plaintiff John's cross-motion for summary judgment (Mot. Seq. #9).

"It is well established that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see CPLR 3212[b]; William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475-476 [2013]). "Once the movant makes the proper showing, 'the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action'" (Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d at 448, quoting Alvarez v Prospect Hosp., 68 NY2d at 324). "The 'facts must be viewed in the light most favorable to the non-moving party'" (Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d at 448, quoting Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks omitted]).

Each of plaintiffs' causes of action are based upon the premise that they are entitled to recover "real property located at 60 North Street, Granville, New York 12832" pursuant to the Contract for Deed dated May 27, 2021 (NYSCEF Doc. No. 4, ¶1). Plaintiffs endeavor to intertwine Plaintiff John's Bathroom Contract and Plaintiff Patricia's Contract for Deed with an estimate from nonparty McClure and Sons Construction LLC to demonstrate the combined obligations of the parties and breach by Bogart.

Defendants bear the initial burden of establishing a prima facie entitlement to summary judgment as a matter of law by presenting competent, admissible evidence demonstrating the absence of triable issues of fact. (see Zuckerman v City of New York, 49 NY2d 557, 562, 404 NE2d 718, 427 NYS2d 595 [1980]; Quinn v Depew, 63 AD3d 1425, 1428, 881 NYS2d 536 [2009])

In support of their motions, defendants contend that the Contract for Deed was a preliminary agreement and does not constitute a binding agreement because the terms required Plaintiff Patricia's attorney to draw up a "true contract" and there was no meeting of the minds on all essential terms. The missing terms include a timeline for the renovation work, payment of [*3]the down payment and remaining balance, or when possession would be transferred. Furthermore, defendants content the Contract for Deed only dealt with the house, barn and one acre, but made no provisions as to how or when that one acre would be subdivided from the remaining property, who would make such application, and which party would pay for the associated costs.

"[A] cause of action for breach of contract requires that the plaintiff show the existence of a contract, the performance of its obligations under the contract, the failure of the defendant to perform its obligations and damages resulting from the defendant's breach" (Ampower-US, LLC v WEG Transformers USA, LLC, 214 AD3d 1129, 1131, 185 N.Y.S.3d 811 [3d Dept 2023] [internal quotation marks and citation omitted]; accord Ficel Transp., Inc. v State of New York, 209 AD3d 1153, 1157, 177 N.Y.S.3d 356 [3d Dept 2022]).

Moreover, the statute of frauds provides that a contract for the sale of real property is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged. (General Obligations Law § 5-703[2]). To satisfy that statute, the memorandum must designate all parties, identify and describe the subject matter and state all the essential terms of a complete agreement. The memorandum is not required to be contained in one document; separate signed and unsigned writings can be read together, provided that they clearly refer to the same subject matter or transaction, contain all of the essential terms of a binding contract, and the unsigned writing was prepared by the party to be charged. At least one document signed by the party to be charged must establish a contractual relationship between the parties, with the unsigned documents referring on their face to the same transaction. (Post Hill, LLC v E. Tetz & Sons, Inc., 122 AD3d 1126, 1126 [3d Dept 2014])

Preliminarily, if the Court were to find the Contract for Deed to be valid, it is signed by Plaintiff Patricia and Bogart only. The estimate attached to and referenced in the Contract for Deed details work to be done at 62 Mettowee Street by nonparty McClure and Son's Construction, LLC, not Plaintiff John individually. Plaintiff John is not mentioned in the Contract for Deed or the estimate and, by his own admission, any reference to Plaintiff John's Bathroom Contract with Bogart is for the limited purpose of identifying the source of a portion of the down payment on the property. (See NYSCEF Doc. No. 151, ¶8) This, however, does not make Plaintiff John an aggrieved party to the Contract for Deed.

Turning now to the validity of the Contract for Deed, the Court finds it fails to include all material and necessary terms. The Contract for Deed expressly states, "[t]his is being signed as a preliminary contract, awaiting a true contract with timeline of work (being drawn up by purchaser's attorney)". (NYSCEF Doc. No. 7, pg. 8) "[W]hen the parties have clearly expressed an intention not to be bound until their preliminary negotiations have culminated in the execution of a formal contract, they cannot be held until that event has occurred." (See, Brause v Goldman, 10 AD2d 328 [1st Dept 1960]) Further evidencing the Contract for Deed was a preliminary writing was the requirement that the subsequent contract include the material term of time for performance. Where a material element is left for future negotiations, there is no enforceable contract. (Deli of Latham, Inc. v Freije, 101 AD2d 935, 935 [3d Dept 1984])

Additionally, the Contract for Deed is unenforceable as it fails to contain an adequate description of the property to be conveyed. Plaintiffs assert this is an action to recover real property located at 60 North Street in the Town of Granville, and Bogart agreed to convey the property to Plaintiff Patrica which "included a five-bedroom, two-bathroom house and large barn sitting on a one-acre lot". (NYSCEF Doc. No. 4, ¶19) The contract states in part:

" . . . the Seller . . . does hereby convey and grant with warranty covenants to the Purchaser, all of the following lands and property, together with all improvements located on the property: 5 bedroom, 2 bathroom, large barn, 1 acre lot. (the "Premises").

The down-payment for the purchase of this home . . . is to be taken off from the purchase price of $60,000.00 for the house at 60 North Street, Granville, NY 12832". (NYSCEF Doc. No. 7, ¶¶ 1 and 9)

The Contract for Deed fails to adequately describe the 1 acre of land to be subdivided and conveyed with the house that is part of a 14.7-acre parcel known as 60 North Street. Nowhere in the contract are the boundaries of the property to be sold specifically described, nor is it specified how the 1 acre to be sold to Plaintiff Patricia would be configured within the 14.7 acres that make up the entire parcel. The property to be sold cannot be identified with reasonable certainty and therefore the Contract for Deed is unenforceable. (Allegro v Youells, 67 AD3d 1081, 1082-1083 [3d Dept 2009])

As defendants have met their initial burden to establish their entitlement to judgment as a matter of law on these causes of action, it now falls to plaintiffs to demonstrate that the law does not support summary judgment and/or assemble and present facts sufficient to require a trial of any issue of fact to defeat the motion (Zuckerman v City of NY, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595).

Plaintiff John asserts the word "preliminary" written on the Contract for Deed doesn't mean that it is not enforceable, instead it "means that both parties have come to some agreement and were just waiting for a more formal document to be drawn up".(NYSCEF Doc. No. 161, ¶5) Plaintiff John also alleges a relative of Bogart added the word "preliminary" after the document had been signed. (id.at ¶ 7) Plaintiff John submitted several text messages purportedly exchanged between himself and Bogart where he asserts Bogart stated, inter alia, 60 North Street was his new home. These conclusory statements, unsubstantiated allegations and inadmissible evidence from a nonparty to the Contract for Deed are insufficient to defeat summary judgment. (Zuckerman at p.562)

Alternatively, defendants Thomas and Bogart argue plaintiffs are barred from bringing a claim for breach of contract or specific performance of a contract under either the Contract for Deed or the Bathroom Contract because they constitute "home improvement contracts" as defined in Section 770(6) of the General Business Law and the contracts violate General Business Law § 771 by not containing essential statutory provisions. The Court's findings that the Contract for Deed is unenforceable and plaintiff's acknowledgement that any reference to the Bathroom Contract was to demonstrate the source of a part of the downpayment renders defendants' argument moot.

Thus, having considered NYSCEF Doc. Nos. 129 through 191, 193, 199 and 214 through 216 and having found the Contract for Deed to be invalid and unenforceable; it is hereby

ORDERED, that defendant Thomas's motion for summary judgment (Mot. Seq. #7) is granted in its entirety and the complaint against him is dismissed with prejudice; and it is further

ORDERED, that defendant Bogart's motion for summary judgment (Mot. Seq. #8) is granted in its entirety and the complaint against him is dismissed with prejudice; and it is further

ORDERED, that plaintiffs' motion for summary judgment (Mot. Seq. #9) is denied in its entirety; and it is further

ORDERED, that plaintiffs' motion for oral argument is denied (Mot. Seq. #10) is denied [*4]in its entirety; and it is further

ORDERED, that plaintiffs' motion for substitution and amendment of the caption (Mot. Seq. #11) is granted; and it is further

ORDERED, that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The original of this Decision and Order has been filed e-filed by the Court. Counsel for defendant Boart is directed to serve all parties with notice of entry.