2 No. 106
Adam D. Sokoloff et al.,
Appellants,
v.
Harriman Estates Development Corp.,
Respondent, et al.,
Defendant.
_________________________________________________________________
2001 NY Int. 97
July 10, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Sidney A. Weisberg, for appellants.
Jack A. Kaplowitz, for respondent.
_________________________________________________________________
LEVINE, J.:
On this appeal, we review the dismissal on the pleadings, pursuant to
CPLR 3211(a) (7), of plaintiffs' cause of action seeking specific
performance of an alleged contract. The facts as alleged in the
complaint and other averments submitted in opposition to the motion to
dismiss are as follows. In March 1998, plaintiffs purchased land in
the Village of Sands Point, Nassau County, in contemplation of
building a new home on the property. For a total of $65,000, defendant
Harriman Estates Development Corp., a residential contractor, offered
to provide plaintiffs with certain pre-construction services,
including furnishing an "architectural and site plan/landscape design"
and assisting them in obtaining a building permit. The offer was set
forth by Harriman in a March 12, 1998 letter, which established a
payment schedule and requested payment of a $10,000 retainer fee.
Plaintiffs accepted the offer by paying Harriman the retainer fee.
Thereafter, following several meetings between plaintiffs, Harriman
and defendant Frederick Ercolino, an architect, the architectural
plans were finalized, filed with the Village and approved.
Although plaintiffs paid Harriman a total of $55,000 for the
architectural plans and other services, and tendered the remaining
balance due under the terms of their agreement with Harriman, Harriman
and Ercolino refused to allow plaintiffs to use these plans to build
their home. After plaintiffs rejected Harriman's offer to build the
home for an estimated cost of $1,895,000 (a sum significantly greater
SNIPPETS:
On this appeal, we review the dismissal on the pleadings, pursuant to CPLR 3211, of
The facts as alleged in the complaint and other averments submitted in opposition to the
For a total of $65,000, defendant Harriman Estates Development Corp., a residential
The offer was set forth by Harriman in a March 12, 1998 letter, which established a payment
Thereafter, following several meetings between plaintiffs, Harriman and defendant Frederick
With respect to the first cause of action, seeking specific performance, plaintiffs alleged
In their second cause of action, for replevin, plaintiffs alleged that they owned the
Supreme Court granted the motion in part by dismissing the cause of action for replevin,
On Harriman's appeal from Supreme Court's failure to grant the motion to dismiss in its
The court reasoned that even plaintiffs' first cause of action was barred by a provision in
On a motion to dismiss pursuant to CPLR 3211, we must accept as true the facts as alleged in
Applying these principles, we conclude that plaintiffs adequately alleged a cause of action
Plaintiffs' first cause of action was not predicated on a third-party beneficiary theory and
in the first cause of action -- the only cause of action at issue at the Appellate Division
In general, specific performance will not be ordered where money damages "would be adequate
A person who enters into a contract with another to perform services as an agent "is subject
Accordingly, the order of the Appellate Division should be reversed, with costs, and the
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