|
Back to the Indian Law Bulletins
(Cite as: 2006 WL 2589411 (S.D.N.Y.)) United States District Court,S.D. New York. D Scott CARRUTHERS, Springhawk LLC, Summerhawk LLC, Plaintiffs, v. David FLAUM, Flaum Management Company, Inc., 3D Associates LLC, A.P. Equity, Inc., Ancestral Reclamation LLC, Alan H. Young, Individually and d/b/a Lindenbaum & Young, Lindenbaum & Young, Charles Petri, Gene Barbanti, Individually and d/b/a the Barbanti Group Real Estate and James Simermeyer, Defendants. No. 03 CIV. 7768. Sept. 6, 2006.
John Gilbert Horn, Karen R. Kaczmarski, Harter, Secrest & Emery, LLP, Buffalo, NY, for Plaintiffs. Joshua E. Kimmerling, Cuddy & Feder LLP, White Plains, NY, Karl Essler, Fix Spindelman, Brovitz & Goldman, P.C., Fairport, NY, Gerald Orseck, Orseck Law Offices, Liberty, NY, Marvin Newberg, Attorney-At-Law, Monticello, NY, Robert Jay Semaya, Moses & Singer LLP, Robert David Werth, Robert D. Werth, P.A., New York, NY, for Defendants. DECISION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTIONS FOR SANCTIONS MCMAHON, J. Introduction *1 The parties to this case were co-venturers in an ill-starred attempt to open a number of casinos, resorts, and high-stakes bingo parlors on the “tribal land” of the Ungechauk Indian Nation in Sullivan and Suffolk Counties. Their endeavor fell through in large part because the Ungechauk lack federal recognition as a tribe and thus cannot legally operate a casino in New York State. Nonetheless, the parties set up limited-liability companies for their venture, entered into operating agreements, and sought to acquire land in Sullivan County on which to build their future gambling empire. At least one parcel of land owned by defendant Charles Petri-a small plot off Exit 106 of Route 17-was transferred to the Unkechaug, in exchange for $550,000, which was supplied by plaintiff Carruthers. However, the land was subject to a multi-million dollar mortgage, which was ultimately foreclosed on, causing the loss of the entire investment. A second Parcel, located off Exit 107, was supposed to be transferred to the Unkechaug but never was. Plaintiffs now assert that Petri and his associates breached several provisions of the contract for the 106 and 107 Parcels, and made various fraudulent misrepresentations during negotiations in order to induce plaintiffs to agree to the deal in the first place. Plaintiffs also bring claims against Alan Young, attorney to the Petri defendants, for breach of fiduciary duty as an escrow agent, and against David Flaum, a real estate developer who allegedly was the secret backer of the Petri defendants' activities. Finally, plaintiffs claim that James Simermeyer, their own attorney and business partner, committed malpractice in failing to secure the parcels. Before this Court are four motions for summary judgment: one each from defendants Flaum, Young, Petri, and Simermeyer. Flaum and Simermeyer also move for sanctions pursuant to Fed.R.Civ.P. 11. For the reasons set out below, defendants' motions for summary judgment are granted. Flaum's and Simermeyer's motions for sanctions, however, are denied.
Facts FN1 The instant case arises out of the efforts of the Unkechaug Indian Nation (“the Nation”) and its chief, Harry Wallace (formerly a named defendant in this case), to establish casino gaming and high stakes bingo on their “ancestral lands” in Sullivan and Suffolk counties. In the course of those efforts, the Nation and its business partners allegedly entered into a series of deals for the acquisition of land as the site of the Nation's future casino. These deals went bad, and the parties now blame one another for the collapse. Of course, gaming is illegal in New York state, and has been since 1771 and the colonial governorship of William Tryon. See Saratoga County Chamber of Commerce Inc. v. Pataki, 100 N.Y.2d 801, 825-28, 766 N.Y.S.2d 654, 798 N.E.2d 1047 (2003) (Smith, J., concurring in part) (recounting the history of New York's anti-gaming laws). However, New York's longstanding anti-gaming policy was upended by the 1997 Supreme Court decision in California v. Cabazon Band of Mission Indians, which held that state regulatory powers over gambling did not extend to the regulation of gaming on Indian land contained within a state's territory. 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). In the wake of that opinion, Congress passed the Indian Gaming Regulatory Act of 1988, Pub.L. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701-2721) (hereinafter, the “IGRA”). The IGRA formally permitted gaming operations on Indian land, while giving state authorities some limited power to approve and regulate such activities. *2 With the passage of the IGRA, numerous Indian nations across the country, including the Unkechaugs, saw an opportunity to cash in. However, unlike many of their sister nations, the Unkechaugs lacked federal recognition as a tribe-a requirement for a nation to obtain the benefit of the IGRA's preemption of local anti-gaming ordinances. The Nation's quest for casino gaming apparently began with a conference on economic opportunities for the Unkechaug Nation held in upstate New York in 2001. Defendant James Simermeyer, himself an Indian but not an Unkechaug (his tribal affiliation is unclear) as well as a friend, colleague and one-time law partner of Wallace, attended the conference. Affidavit of James Simermeyer in Support of Motion for Summary Judgment (“Simermeyer Aff.”) ¶¶ 32-35. As a result, Simermeyer became involved in the Nation's economic development effort, and through various contacts met Mitchell Stanley, a representative of the Delaware Nation, and Ivy Ong, a Nevada businessman who had previously set up Indian nation gaming in Oklahoma. Id. ¶ 37, 39. Ong apparently was apparently interested in setting up casino operations on Unkechaug land. Simermeyer allegedly agreed to assist Ong in the venture, and provided his New York office as a base of operations for his wheeling and dealing. Id. ¶¶ 41-45. Ong wasted no time in making contact with the Unkechaug and lining up support for his vision of a series of gaming operations on their land. Simermeyer Aff. ¶ 48. An agreement between the Nation and Stanley (allegedly backed by Ong) establishing a partnership to operate casino gaming was apparently signed on November 3, 2001. Id., Ex. E. Shortly thereafter, the Unkechaug apparently became aware of extensive malfeasance in Ong's past, including the collapse of a joint gaming operation with the Seminole Nation in Oklahoma. Id. ¶ 59. According to Simermeyer, the Nation became afraid that Ong's reputation would taint the public face of the venture. As a result, D. Scott Carruthers, lead plaintiff in this case, stepped into Ong's shoes to keep the project moving. Id. ¶ 61. Before 2002, Carruthers had been Ong's attorney and a principal of Carlo World Wide, Ong's Nevada organization. Defendants Rule 56.1 Statement, ¶¶ 8-9. He had extensive experience in the gaming industry himself, as well as a longtime connection to Ong. Id. ¶ 61, Declaration of D. Scott Carruthers in Opposition to Petri Motion for Summary Judgment (“Carruthers Decl. I”) ¶ 4, cf. Simermeyer Aff. ¶ 46-47. With the Unkechaug Nation on board, the next step was the establishment of operating entities for the Nation's future casino empire. By January 2002, Carruthers, along with Simermeyer and Stanley, set up the Springhawk and Summerhawk LLCs as vehicles for the operation of casino gambling and high-stakes bingo operations on Unkechaug land. Simermeyer Aff. ¶ 52. Stanley, Carruthers and Simermeyer were the principals of the new entities, with Carruthers holding a majority interest in each. Id. *3 The three allegedly entered into oral “operating agreements” which set out their respective responsibilities within the Springhawk and Summerhawk operations. Carruthers maintains that Simermeyer was appointed to serve as attorney for the Springhawk and Summerhawk operations. Declaration of D. Scott Carruthers in Opposition to Simermeyer Motion for Summary Judgment (“Carruthers Decl. II”) ¶ 18. He also contends Simermeyer agreed to act as his personal attorney in these dealings. Id. ¶ 20. Simermeyer concedes that he performed some legal work for Springhawk and Summerhawk, but he contends that any such work was incidental to his business function as an officer of the LLCs. Simermeyer Aff. ¶ 49. The next step in the operation was to locate some “ancestral land” of the Unkechaugs that could serve as the site of the gaming operation, and, of course, investors to provide the necessary funding. Towards that end, Simermeyer (perhaps through Wallace) introduced Carruthers to defendants Charles Petri, Alan Young and Gene Barbanti, who, in various permutations, controlled defendant entities The Barbanti Group, A.P. Equity Inc., Ancestral Reclamation LLC, and 3D Associates, LLC (collectively, “the Petri defendants”). Petri and Barbanti own and manage commercial real estate in upstate New York; Young is a partner in the Brooklyn law firm Lindenbaum & Young, who apparently performed legal work for Barbanti and Petri. He was also a principal of 3D Associates, one of the various operating entities controlled by Petri and Barbanti. Petri, Young and Barbanti represented to Carruthers that they were in possession of various parcels of land which could serve as sites for the Nation's gaming operations. Particularly, Petri offered two parcels of land in the town of Thompson in Sullivan County: first, a 35-acre property off Exit 106 of Route 17 (“the 106 Parcel”); second, an undeveloped 85-acre property off Exit 107 (“the 107 Parcel”).FN2 Located on the 106 Parcel was a failed (or failing) shopping center known as the Apollo Mall. The parties imagined that the existing buildings on the property could quickly be converted into a casino until a more upscale project could be designed and built. However, the 106 Parcel was subject to a $3.5 million dollar mortgage in favor of an entity known as ABC Pacific Realty LLC (formerly a defendant in this case), and a $200,000 lien in favor of the Sullivan County Industrial Development Agency (“IDA”). The property was encumbered as early as 1996, when the mortgage was held by the Bank of Kuwait; at that time, the parcel was owned by one Leo Ullman, under the name A.P. Equity Inc. (in some documents, “A.P. Equities”). Declaration of Gene Barbanti, Horn Aff., Ex H, ¶ 13(n). In fact, it appears that title was transferred to the Sullivan County IDA in 1987, with AP Equity retaining a long-term lease and the right to reclaim record title upon satisfaction of the debt owed to the IDA. Id. ¶ 13(c). In 1996, a tolling agreement was structured between the Bank of Kuwait, AP Equity, and the IDA, staying execution of the mortgage. Id. ¶ 13(n). *4 In 2000 or 2001, Barbanti, Young, and one James Messinger caught wind of the possibility of casino development on the site.FN3 Id. ¶ 13(a). They then put together a deal to acquire the parcel, which entailed purchasing A.P. Equity from Ullman and buying out the Bank of Kuwait's interest in the mortgage. Id. ¶ 13(d)-(e). At first, a Bank of Kuwait representative informed Barbanti and his associates that the mortgage could be acquired for $750,000. In that belief, Barbanti, Young and Messinger proceeded to buy Ullman out. However, they apparently slipped up in their due diligence, because after they bought A.P. Equity, Barbanti and his associates learned that the mortgage was not owned by the Bank of Kuwait. It had been assigned to ABC Pacific. Id. ¶ 13(f). Belatedly realizing the extent of A.P. Equity's liabilities, Barbanti caused A.P. Equity to file for Chapter 11 protection in May 2001, thus forestalling any action by ABC Pacific to foreclose on the 106 Parcel. Id. ¶ 13(g). A.P. Equities emerged from bankruptcy in February 2002, with its unsecured debt reduced but the mortgage on the 106 Parcel still extant. After emerging from bankruptcy, A.P. Equity brought an action in State Supreme Court, Sullivan County, seeking to enjoin ABC Pacific from commencing an action to foreclose on the 106 Parcel, on the grounds that the transfer from the Bank of Kuwait was void. Id. ¶ 7. On March 11 2002, A.P. Equity contacted ABC Pacific Realty's attorney and offered to acquire the mortgage for $1.65 million and a waiver of claim. FN4 Horn Aff. Ex. E. ABC Pacific plainly did not accept the offer; indeed, there is nothing in the record to indicate that they responded at all. By letter dated March 28, 2002, A.P. Equity retracted its offer. Id. However, Petri contends that representatives of ABC Pacific continued to contact him about settling the mortgage. Petri Dep. at 125:13-22. This was the point at which Petri and Barbanti met Carruthers and entered into negotiations for the various parcels. Carruthers was made aware of the existence of the $3.5 million mortgage on the 106 Parcel as part of the negotiations. Carruthers Decl. I, ¶ 9. However, he asserts that Petri assured him that the mortgage could be removed and title cleared for $1.5 million, as part of resolving A.P. Equity's outstanding legal claims against ABC Pacific. Id. Carruthers was also told that the 107 Parcel was unencumbered (which appears to have been correct). Id. ¶ 8. As the negotiations progressed, Carruthers and the Petri defendants put together an undated, unsigned “Draft Memorandum of Understanding.” Simermeyer Motion for Summary Judgment, Ex. I. The Draft Memorandum speaks of a $13 million “price” (apparently for both parcels), including $3 million in cash or guarantees to “settle any claims, contingent or otherwise,” to be “escrowed” with Young. Id. Of that $3 million, approximately $500,000 was termed the “minimum amount” needed to effectuate the transfer. Id. It also provides that the development of the Apollo Mall would be “fast-tracked” with the cooperation of the parties, and mentions that an “equal partnership” between Ancestral and Springhawk would be formed to develop a $125 million resort on the 107 Parcel. Id. The draft lists James Simermeyer as attorney for both the Nation and Springhawk. Id. *5 This draft was never signed. Instead, on or about April 26, 2002, Petri and Carruthers, on behalf of Ancestral Reclamation and Springhawk LLC respectively, signed a “Letter of Intent and Understanding” (“Letter of Intent”) setting out the parties' plans for developing gaming facilities in Sullivan County. Carruthers Decl. II, Ex. F. The letter outlines a three-step plan for development of the Unkechaugs' newly-discovered ancestral land. First, Ancestral was to deed the 106 Parcel to the Unkechaug in fee simple, and then renovate the Apollo Mall according to Springhawk's direction. Id. The Letter of Intent states that the parcel was “valued” at $2 million and was subject to a $3.5 million mortgage held by the Bank of Kuwait. The Letter contains the provision, “Ancestral shall indemnify the Nation and Spring Hawk LLC for any amount over $1.5 million paid to settle the claim by Kuwat [sic]” Id. In Phase Two, a bingo facility would be developed on the 107 Parcel, which was also to be deeded to the Nation in fee simple as well. The 107 Parcel was “valued” at $11 million. Id. Finally, in Phase Three, Ancestral was to build a gaming facility and residential development on an 1800-acre parcel at Mamakating, New York (in Orange County). That parcel was also to be deeded to the Nation. The parties did not specify a “value” of the parcel, but stated that net profits from the housing development were to be divided 20%, 15% and 65% between the Nation, Springhawk, and Ancestral respectively. The Letter then contains the following inelegantly-phrased paragraph: It is further understood and the intent of the parties to give Spring and/or the Nation the right of first refusal to purchase a portion of the properties the properties [sic] controlled by Ancestral or it's [sic] affiliates in Sullivan County, including but not to [sic] properties off Route 17, N.Y. at Exit 107, Exit 106 and Mamakating, New York, at a fair and reasonable sale price. Id. The Letter also includes the statement, “It is the understanding and intent of Spring Hawk LLC to compensate Ancestral for its participation in the development of the facilities for the operation of bingo facilities and other economic enterprises at the site developed by Ancestral for the Nation” (i.e., the three properties mentioned in the Letter). The Letter concludes with the statement, “The parties agree to act in good faith and enter into an agreement that will encompass the intend [sic] and understanding set forth in this letter of intent and understanding.” Id. Nowhere in the Letter of Intent and Understanding does Ancestral commit to deliver any property to anyone for a stated price. It was at this same time that Springhawk and Summerhawk entered into “gaming agreements” with the Nation, granting them a ten-year period to manage the Nation's casino operations, as well as rights to manage other economic opportunities on the land. There is no evidence that Petri or his associates were involved in these agreements in any way. *6 Also in late April 2002, an individual known as Ronald Seale surfaced, claiming to be an agent for Greg Norman, the professional golfer known as the “Great White Shark.” He offered to invest $1.5 million in the venture, including $550,000 up front, in exchange for a share of the gaming operations. Petri Dep. at 87:9-24. Seale apparently was brought into the deal by Carruthers, although how he was identified as an investor remains something of a mystery. But Seale was offering what everyone else in the deal lacked: cash. In a letter dated April 29, Carruthers memorialized what he believed to be Seale's position: Seale would advance $1.5 million in exchange for five “points” on the 106 and 107 Parcels. Carruthers Decl. I, Ex. A. According the letter, the first $550,000 would be provided that day (April 29), with $200,000 to follow within a few days and the rest available after the acquisition of a construction loan. Id. This letter, along with a promissory note and guaranty agreement backed by Carlo World Wide, were faxed to Seale. However, Seale proved unable or unwilling to front the money and the deal memorialized in the April 29 letter never happened Carruthers did not pursue him; by letter dated May 3, he simply asked for the note and guaranty back. Simermeyer Aff. Ex. L. Having lost Seale, on May 1, 2002, Carruthers met with Simermeyer, Petri, Barbanti, Ong (and perhaps several others) regarding the need for an alternate source of funding so that the Nation could acquire the 106 and 107 Parcels. Carruthers contends that it was at that meeting that he was asked to advance the $550,000 himself. Carruthers Decl. I, ¶ 8. Carruthers asserts that he was hesitant to advance the money and sought various assurances to secure his loan. Id. He claims that he received such assurances, in the form of: (a) the representations of Petri about his and AP Equity's efforts to settle the Apollo Mall mortgage, his promise to indemnify Springhawk and the Unkechaug Indian Nation for any deficiency in that settlement amount, and his assurance that the Unkechaug's would receive clear title to the Apollo Mall; (b) the representations of Simermeyer that he would see to it that my $550,000 was secured by, among other things [not specified], the execution of a master lease agreement and a title insurance policy; and (c) the representations of Petri and Barbanti that the Exit 107 Parcel would be transferred to the Unkechaug Indian Nation within two weeks following the May 1 meeting. Carruthers Decl. II, ¶ 39. Armed with these promises, Carruthers agreed to provide the funds. Id. ¶ 41. Petri's version of the May 1 meeting is somewhat different. He asserts that Carruthers was eager to invest in the venture, and had already arranged for Ong to provide $350,000 in funding while he put up $200,000 of his own money. Petri Dep. at 94:2-8. Petri also asserts that the only Parcel being discussed was the 106 Parcel, and that the participants understood that the 107 Parcel would be available-for an additional $11 million-at some point in the future. Id. at 97:4-11. *7 As for the mortgage on the 106 Parcel, Petri acknowledges that he believed he could settle the mortgage for $1.5 million and told Carruthers this during the negotiations. Id. at 126:8-14. Petri also states that ABC Pacific was still interested in settling the mortgage, and that between March and May 2002, they were calling “all the time” to try to work out a deal. Id. at 124:23-24. About this time, the Unkechaug received an opinion from the law firm of California firm of Monteau & Peebles LLP Simermeyer Motion for Summary Judgment, Ex. N. It appears that the Nation solicited the firm to look into the legality of gaming operations on Unkechaug land. The Monteau & Peebles letter opined that the Unkechaug had no standing under the IGRA to commence gambling operations without federal recognition. Id. The firm also considered and rejected a number of alternative legal arguments that would have supported starting a gambling operation without federal recognition. Id. Therefore, at least as of late April, the Unkechaug had little reason to believe they could legitimately open a gaming operation on their “ancestral land.” FN5 It is not clear whether the Monteau & Peebles opinion was disseminated to the people who were preparing to close the land deal. If it was, the bad news did not appear to slow the acquisition down. According to Petri, he and Simermeyer then worked up a plan to transfer the money from Carruthers and his backers through Young. Petri Dep. at 83:15-19. He also spoke about “clearing up” the IDA and acquiring title insurance for the 106 Parcel. Id. Carruthers transferred $550,000 to Simermeyer in two installments-$350,000 on May 3 and $200,000 on May 10-to be transferred to Young. Carruthers Decl. I, ¶ 11. Simermeyer deposited the two checks in Young's IOLA account: one for $349,000 (dated May 3) and the other for $200,000 (dated May 10), leaving $1,000 in his own account. Affidavit of Alan Young ¶ 3. These checks bore memoranda reading “purchase Apollo Shop Center 106 Exit off 17” and “Unkechaug & Apollo A.P. Equity” respectively. Motion, Exs. E-F. The letter accompanying the first check, dated April 1, sent from Simermeyer to Young, contains the following language: Pursuant to the direction of your client Chuck Petri, I have deposited a check in the amount of $350,000 [sic] in your IOLA account for closing of the Apollo Shopping Center.... The funds will be released to close title of the property to the Unkechaug Indian Nation either from A.P. Equities Inc. to the Unkechaug Indian Nation or by assignment of title (Via IDA and Court) by A.P. Equities Inc to the Unkechaug Indian Nation or conveyed as a straw man by A.P. Equities Inc to the Unkechaug Indian Nation.FN6 Simermeyer Motion for Summary Judgment, Ex. S. In his letter dated May 8, Carruthers reminded Simermeyer to “make sure we are protected on the acreages off of exit 106 and 107 described in Phases I and II of said letter via a duly executed master lease agreement prepared by you and held in your control.” Declaration of John Horn in Support of Plaintiff's Opposition to Simermeyer's Motion for Summary Judgment, Exhibit E. The letter also asked for copies of Springhawk's contracts, and copies of records regarding the disbursements regarding the $550,000 that Carruthers had provided. *8 By letter to Carruthers dated May 9, 2002, Simermeyer acknowledged receipt of the $200,000 check, and noted that the 106 Parcel had already been transferred on May 6. Id., Ex. G. He described the additional funds as designed to cover payments for taxes, the IDA lien, and title insurance. Simermeyer also noted the remaining outstanding mortgage held by the bank of KUWAT [sic] in the amount of $3.5 million, but that “Chuck” [presumably Charles Petri] has stated that he would reimburse any amount over $2.5 million (not $1.5 million, as stated in the Letter of Intent) to settle the mortgage. Id. Young accepted the funds and distributed them on instructions provided to him by Petri. Affidavit of Alan Young, ¶¶ 6, 9. Pursuant to those instructions, Young paid off the $200,000-plus lien in favor of the Sullivan County IDA and paid $100,000 to accountants and insurance providers. He also paid $50,000 to Colonial Real Estate Services (allegedly part-owned by Petri), $50,000 to Barbanti in fees, $75,371.25 to himself for legal fees, and $9,315 to his firm Lindenbaum & Young. In total, he disbursed $514,075.63 of the total-leaving approximately $34,000 of the $549,000 unspent. Horn Aff. in Opp. to Petri and Young, Ex. F. He also delivered the deed to the 106 Parcel (and a correction thereto) in favor of the Unkechaug Indian Nation to the Tremper Hiatt Abstract Company for recording. Id. ¶ 7. The parties do not contest the fact that the deed to the 106 Parcel was duly recorded with the Sullivan County Clerk. The 107 Parcel was never transferred, and remained in the possession of 3D Associates. Young claims to have been uninvolved in the negotiations up to this point and unaware of the details of the agreement between Carruthers, Petri, and the others. There is no evidence that he was present at the May 1 meeting or had a hand in drafting the Letter of Intent, which he did not sign in any event. FN7 Carruthers concedes that he did not personally enter into an escrow agreement, or have any direct communication with Young between the May 1 agreement and at least May 10. Deposition of D. Scott Carruthers at 56:19-24, 60:14-15. After the transfer of the 106 Parcel, the Petri defendants-specifically Barbanti-continued to collect rent from the Apollo Mall tenants. Petri asserts that he continued to write checks in excess of the total amount of rent collected to pay heating bills and to repair water damage on the property. Petri. Dep. at 98:12-23. Petri further asserts that Carruthers wanted Barbanti to continue to manage the property until he formed a plan as to how to manage the property. Id. at 98:2-6. But the record contains little evidence about what happened to cause the venture to fall apart. It was alleged in plaintiffs' first (unamended) complaint that, on or around May 15, the mortgage held by ABC Pacific was transferred to new owners-Stanley Gallant and LJM Enterprises, prior defendants in this case-who had no interest in settling, but I see no confirmation of that allegation here. First Cmplt., ¶¶ 44, 45. *9 The only other evidence about the parties' conduct post-transfer is a series of letters from Simermeyer to Petri regarding Petri's unfulfilled obligations to the enterprise. The first letter, dated July 24, 2002, requests that Petri turn over $300,000 that he had allegedly promised to provide to the Nation to support its efforts to build the casino, as well as the Nation's mounting bills for its lobbying, legal and public relations efforts.FN8 Horn Decl. Ex. I. Simermeyer further complained of Petri's failure to provide an accounting of financial and tenant relations issues related to the Apollo Mall after the transfer. Finally, the July 24 letter complains of increasing tension between the Nation and Carruthers, who had allegedly spoke to Petri “numerous times to resolve the issue of his involvement in this venture (including payment of $550,000.00 to obtain title in the Apollo Shopping Center).” Id. There had apparently been some discussion of buying Carruthers out, and Simermeyer apparently sought to determine the status of their dealings. Simermeyer's next letter, dated August 21, takes a much more serious tone, questioning for the first time (at least in writing) why the 107 Parcel was not transferred to the Nation along with the 106 Parcel. Horn Decl. Ex. J. According to the letter, the Town of Thompson was considering a “pilot agreement,” the details of which are not provided. By that date it appears that the Apollo Mall was in foreclosure and that proceedings were well advanced; the letter calls the extant $3,000,000 mortgage ‘alarming’ and asserts that it was “imperative” that the 107 Parcel be transferred to Springhawk to keep the venture alive Id. One month after that, on September 16, Simermeyer made a “final demand” for an accounting of how Carruthers' $550,000 [really $549,000] had been used, as well as all rents received from Apollo tenants. He also demanded that Petri provide funds and turn over title to the 107 Parcel to the Nation, as promised. Horn Decl. Ex. K. Simermeyer gave Petri until September 18 to reply to his demands. Id. No response to any of these letters is provided. Thereafter, ABC Pacific (or perhaps the new mortgage holder) foreclosed on the property, and the casino venture fell into desuetude-joining dozens of other similarly failed ventures in Sullivan County. The property was acquired by ABC Pacific at public auction. Carruthers, Simermeyer, Petri and Barbanti were notified of the impending sale by letter from Gerald Orseck, an attorney apparently involved in the project, on October 2, 2002.FN9 Young and Petri Reply Memorandum of Law, Ex. X. The letter urged the parties to take some action to head off the foreclosure, but apparently this advice was not followed. Id. Carruthers then filed his first complaint, asserting some twenty-seven causes of action, most of which were dismissed by this Court in Carruthers I. Carruthers, with leave of this Court, amended his complaint to assert twelve causes of action against many of the original defendants, plus a few new ones: four claims of malpractice, self-dealing, and breach of the duties of loyalty and good faith against Simermeyer, Wallace, and their former law practice Simermeyer & Wallace (Claims I-IV); claims of fraud and breach of contract against Petri, Barbanti, Young, and their various operating entities (Claims V and VII); claims of fraud and breach of contract against David Flaum and Flaum Management (Claims VI and VIII) and a related claim against the Petri Defendants as the agents of the Flaum defendants (Claim IX); one claim of breach of fiduciary duty as an escrow agent against Young and his firm Lindenbaum & Young (Claim X); and finally claims of unjust enrichment against defendant ABC Pacific (Claim XI) and 3D Associates and Barbanti (Claim XII). *10 Plaintiffs also revised their request for damages. In the original complaint, they sought in excess of $750,000,000, which was the amount they thought the Tribe and Carruthers would have made if the entire project had come to fruition. In the amended complaint, Carruthers simply wants his $550,000 back, plus interest. Neither Springhawk nor Summerhawk have asserted independent claims for damages. Plaintiffs also seek $1.5 million from Simermeyer, which includes, but is not limited to, legal fees which Simermeyer received. In Carruthers II, this Court dismissed Claims III and XI of the Amended Complaint in their entirety, and Claim IV insofar as it stated a claim against Simermeyer as a principal in the Springhawk and Summerhawk LLCs. Plaintiffs' claims against Wallace and the law firm of Simermeyer and Wallace were also dismissed. The remaining claims-for breach of contract and fraud against Petri and Flaum, unjust enrichment against 3D Associates, breach of fiduciary duty against Young, and legal malpractice against Simermeyer personally-withstood the motion. After discovery, the parties filed a barrage of motions: Simermeyer for summary judgment on Claims I-IV, Petri and his associates for summary judgment on Claims V and VII; Flaum for summary judgment on claims VI and VIII; and Young for summary judgment on Claim X. Flaum and Simermeyer also sought sanctions pursuant to Rule 11.
Discussion Under Federal Rule of Civil Procedure 56(c), the court will grant summary judgment if the evidence offered shows that there is no genuine issue as to any material fact and that the movants are entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Furthermore, where a plaintiff cannot establish an essential element of his claim, “there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 322-33. On a motion for summary judgment, the court views the record in the light most favorable to the non-movants and resolves all ambiguities and draws all reasonable inferences against the movants. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Donahue v. Windsor Locks Bd. of Fire Commn'rs, 834 F.2d 54, 57 (2d Cir.1987). I consider each set of defendants in turn.
I. The Flaum Defendants I begin with David Flaum and Flaum Management Company because-as should be apparent from the above recital of the relevant facts-they have absolutely nothing to do with this entire venture (as plaintiffs now concede). David Flaum (with Flaum Management Company Inc., the “Flaum Defendants”) is a real estate developer in Rochester, New York. Cmplt. ¶ 76. He apparently came to know Barbanti through several unrelated land deals in Sullivan County (Deposition of David Flaum at 32:4-12) and had been represented by Alan Young several years earlier in a failed attempt to acquire the fabled Grossinger's resort. Young Dep at 42:7-13. According to an article in the Sullivan County Democrat, Flaum and Petri were working together in 2000 to acquire the Concorde Hotel and turn it into an Indian casino. Jeryl Abramson, The Royal Treatment? (Part 2), Sullivan County Democrat, May 23, 2000 at http:// www.yasgurroad.com/jeryl/jeryl20000523.html. *11 In mid-2002, Flaum was put in touch with Chief Wallace. There is no record evidence about what was said in their conversation, but plainly they discussed gambling, because on or about May 16, Flaum sent a letter to Wallace, through Simermeyer, thanking him for “the opportunity... to develop a Class III gaming facility in Sullivan County.” Horn Decl., Ex. A. Both before and after that date, several newspaper articles were published that linked Flaum to A.P. Equity and the ownership of the Apollo Mall, and suggested that Petri and Barbanti were acting as Flaum's proxies. See Ben Montgomery, Future Brightens for Apollo Plaza, Times Herald-Record, Feb. 25, 2002 at http://www.th-record.com/archive/ 2002/02/25/bmapollo.htm; Ben Montgomery, Apollo Mission: Find an Owner, Times Herald-Record, Oct. 9, 2002, at http://www.th-record.com/ archive/2002/10/09/bmapollo.htm. However, aside from Flaum's “thanks for the meeting” letter and these speculative articles (which are rank hearsay and prove nothing), there is no evidence that anything ever happened between Flaum and the Unkechaug. Nonetheless, on this flimsy basis, plaintiffs named the Flaum interests as defendants in this case, alleging that they were in fact the principals behind the failed real estate deals. Discovery failed to unearth any connection between Flaum and the various other defendants in this case-no evidence links him to the parcels or to the other defendants in connection with the Unkechaug deal, and the uniform testimony of all deponents establish that Flaum was not involved in the negotiations over the 106 and 107 Parcels. At the close of discovery, the Flaum defendants moved for summary judgment and sanctions. Before those motions were filed with the court, plaintiffs-responding to a Rule 11 motion that had been served on them-offered to withdraw their complaint against the Flaum defendants. They now ask this court to enter an order of withdrawal pursuant to Fed.R.Civ.P. 41(a)(2). Since plaintiffs concede that there is no evidence to support their claim against the Flaum Defendants, the Flaum defendants are entitled to have judgment entered in their favor. The question is whether they are entitled to have their motion for summary judgment granted, or whether plaintiffs are entitled to withdraw their claims. That depends on whether plaintiffs timely and fully responded to the Rule 11 motion that was served on them by bringing themselves within the “safe harbor” of that rule. Federal Rule of Civil Procedure 11 requires that all representations made to the court, “have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed.R.Civ.P. 11(b)(3). “Appropriate sanction,” including monetary penalties, may be imposed on the attorneys or parties who violate Rule 11(b). In 1993, an amendment to Rule 11 created the so-called “safe harbor” provision of Fed.R.Civ.P. 11(c)(1)(A). Pursuant to the safe harbor provision, a motion for sanctions must be served on the offending party before being filed with the Court. The offending party may avoid sanction by withdrawing the allegedly wrongful pleading within 21 days. Id. *12 In this Circuit, compliance with the procedural requirements of Rule 11 is mandatory. Sanctions may not imposed if the party seeking them failed to comply with the technical requirements of Rule 11. Perpetual Secs. Inc. v. Tang, 290 F.3d 132 (2d Cir.2002). Indeed, the Simermeyer defendants' motion for sanctions was denied on that basis in Carruthers II, 388 F.Supp.2d at 381. The Flaum Defendants did not file a Rule 11 sanctions motion at the outset of the case, when they moved to dismiss the complaint. In fact, they did not file such a motion until discovery had concluded. Then, on October 12, 2005, the Flaum defendants served plaintiffs with their motion for Rule 11 sanctions. Affidavit of John Horn in Opposition to Defendant's Motion for Sanctions, ¶ 21. On November 3, 2005-the twenty-second day FN10 after service of the proposed Rule 11 motion on plaintiffs-Mr. Horn (plaintiffs' counsel) responded by offering to withdraw all claims against the Flaum Defendants. Id. ¶ 23. Because it was too late for the claims to be withdrawn unilaterally, see Fed.R.Civ.P. 41(a)(i), he sent his opponent a stipulation of dismissal, with prejudice and without costs to either side. The Flaum defendants declined to execute the stipulation, because it did not provide for reimbursement of their attorneys' fees. Instead, on November 18, they filed their motions for sanctions and for summary judgment with this Court. The Flaums' rejection of the stipulation led plaintiffs to make their cross-motion for permission to withdraw the claims pursuant to Fed.R.Civ.P. 41(a)(ii), which provides that claims may be withdrawn after the filing of an answer either by stipulation of the parties or by leave of the court. Plaintiffs claim that they complied with the statutory safe harbor provision of Fed R. Civ. P. 11(c)(1)(A) by agreeing to withdraw their claims. The first issue is the timeliness of plaintiffs' response. I strongly suspect that plaintiffs responded to the Rule 11 motion is a timely fashion under the safe harbor rule. However, I cannot tell for sure on the record before me. I know sent their response to the Rule 11 motion on the twenty-second day following service. The rule by its terms gives them 21 days to respond. However, if defendants' motion for Rule 11 sanctions was served on plaintiffs via first class mail, they are entitled to a three-day enlargement of time under Fed.R.Civ.P. 6(e), giving them 24 rather 21 days within which to respond. The problem is that the record does not reveal whether the motion was served by hand or by mail.FN11 Therefore, plaintiffs must advise the court by letter, within three days after their receipt of this opinion, how the motion was served on them. Until I have that information I cannot issue a final ruling on either the Flaum Defendants' motion for summary judgment or the plaintiffs' motion for leave to withdraw their claims. I reject categorically the Flaum Defendants contention that plaintiffs' response was not timely because it was served six months too late. *13 In Carruthers I, I characterized plaintiffs' complaint against the Flaum as a “fishing expedition” and stated that plaintiffs and their counsel left themselves open to sanction if the alleged agency relationship between Flaum and the other defendants proved illusory. 365 F.Supp.2d at 474. The Flaum Defendants argue that this court's skepticism about the claims against them constituted “notice” to plaintiffs that was equivalent to the service of motion papers for 11(c)(1)(A) purposes, and started the 21 day period running last March-not on October 13. That, with respect, is utter nonsense. No law supports defendants' suggestion that a remonstrance from this Court constitutes some type of “constructive notice” for Rule 11 purposes. The rule requires the service of a motion by the party seeking sanctions in order to start the clock. The Second Circuit does not permit any variation on that procedure. Moreover, while I expressed skepticism about plaintiffs' claims against the Flaum-skepticism that discovery has borne out-not only did I not require plaintiffs to withdraw their pleading against Flaum, I denied a motion to dismiss those claims. One cannot argue with a straight face that the court's denial of a Rule 12(b)(6) motion constitutes “constructive notice” that the claims are frivolous enough to warrant sanctions. Defendants rely on Cardillo v. Cardillo, 360 F.Supp.2d 402 (D.R.I.2005), in which my colleague in Rhode Island granted a sanctions motion despite non-compliance with Rule 11(c)(1)(A). In that case, defendants served a facially improper Rule 11 motion upon plaintiffs. The district court found such technical non-compliance no bar to recovery. The Seventh Circuit has taken a similar position, by permitting a “letter or demand” to be sent in place of the motion itself. Nisenbaum v. Milwaukee County, 333 F.3d 804 (7th Cir.2003). However, ths short answer to these cases is that they are not good law in the Second Circuit. see Gal v. Viacom Intern. Inc., 403 F.Supp.2d 294, 309 (S.D.N.Y.2005).FN12 The law in this Circuit is clear: the only way to start the 21 day clock running is for a party seeking sanctions to serve a fully supported motion. In this case, that happened on October 12 (with counting beginning on October 13)-not last March. The next question to resolve is whether plaintiffs' sending of the stipulation of withdrawal (assuming it to be timely) brings them within the safe harbor. Defendants also argue that plaintiffs' offer to withdraw their claims does not meet the requirements of Rule 11. I cannot agree. The rule requires that the challenged claims be “withdrawn or appropriately corrected” within the 21 (or 24) day time period. Plaintiffs sent defendants a stipulation that would have ended their case against the Flaum Defendants. Plaintiffs' counsel signed the stipulation. Since this is not a circumstance in which Rule 41(a)(ii) permits withdrawal of the complaint unilaterally, it is hard for me to see what more plaintiffs could have done to “withdraw” their pleading. *14 The text of Rule 11 does not specify what constitutes the “withdrawal” of a challenged claim. However, the Rules Committee Notes to the 1993 revision make plain that withdrawal need not be a formal affair: “If, during this [21-day] period, the alleged violation is corrected, as by withdrawing (whether formally or informally) some allegation or contention, the motion should not be filed with the court.” Advisory Committee's Note (1993). What little case law exists in this Circuit holds that if a party indicates an intention to withdraw a contested claim during the safe harbor period, that suffices-even if additional steps remain to be taken under Rule 41. See Team Obsolete Inc. v. A.H.R.M.A. Ltd., 216 F.R.D. 29 (E.D.N.Y.2003); Mass. Connection Inc. v. City of Hartford, No. 3:05 Civ 485, 2005 U.S. Dist. LEXIS 19894 (D.Conn. Aug. 31, 2005). So as long as the plaintiff takes some step leading to the withdrawal of the offending claim-whether offering to withdraw the claim or moving for leave to withdraw them-Rule 11 will be satisfied, even if it takes longer for the requirements of Rule 41 to be completed. At least where a motion is made, it will rarely be possible for a court to adjudicate a motion for leave to withdraw claims within the 21 day period. Team Obsolete Inc., 216 F.R.D. at 44 n. 12. Of course, here the plaintiffs did not make a motion for leave to withdraw their claims. They send a stipulation of withdrawal for defense counsel's signature. But it defies logic to suggest that a defendant who has served a Rule 11 sanctions motion could render a plaintiff out of time for safe harbor treatment by refusing to sign a stipulation of withdrawal that is timely proffered. By serving the motion, the Flaum defendants indicated that they wanted the claims withdrawn. Plaintiffs clearly and unmistakably granted their request. Rule 11 requires no more. Defendants' final contention-that they were not bound to sign a withdrawal which contained a waiver of a claim of attorneys' fees-can be disposed of quickly. Plaintiffs' letter and proposed stipulation (for that matter, the letter alone) were sufficient to provide informal notice to the Flaum defendants that Claims VI and VIII would be withdrawn. The stipulated dismissal was conditioned only on assignment of costs to each side-a term wholly in line with the language of Rule 41, which does not generally impose costs on a plaintiff who voluntarily withdraws a claim. Fed.R.Civ.P. 41(f) (2000). This follows the so-called “American Rule,” which holds that the prevailing party in litigation will bear its own costs, absent a statutory provision or contractual term to the contrary. U.S. Fidelity & Guar. Co. v. Braspetro Oil Servs. Co., 369 F.3d 34, 74 (2d Cir.2004). Nothing in Rule 11 requires a plaintiff to agree, as a condition of withdrawing claims, to reimburse his opponent for attorneys' fees already expended. Thus, plaintiffs' proffer of a stipulation of dismissal is sufficient to satisfy the safe harbor requirement of Rule 11. *15 For the above reasons, plaintiffs will prevail if they in fact timely availed themselves of the safe harbor provision. If they did not-and if they fail to demonstrate “excusable neglect” for failing to do so-then defendants will be entitled to summary judgment and I will deal with the issue of sanctions in a subsequent opinion.
II. The Petri Defendants A. Breach of Contract
According to Carruthers, plaintiffs entered into a complete and binding contract with the Petri defendants for the transfer of both the 106 and 107 Parcels, on terms contained in the April 26 “Letter of Intent and Understanding,” read together with (1) the undated “Draft Memorandum of Understanding;” (2) the oral assurances allegedly made at the May 1 meeting involving Simermeyer, Carruthers, Petri, et al., and (3) the parties' subsequent course of conduct. This alleged contract comprised the following terms: the two parcels, which were “valued” at a total of $13 million in the Letter of Intent, would be transferred to the Nation-the 106 Parcel almost immediately, and the 107 Parcel by May 15-in exchange for $550,000 from Carruthers for fees and costs. It is plain from Carruthers' contentions against Young, infra, that the $550,000 was not intended by him as a payment to Petri for the land, but rather a cash advance to pay for insurance, the IDA lien on the 106 Parcel, and other necessary costs. The Petri defendants agreed also use their best efforts to settle or reduce the amount of the mortgage and further agreed to indemnify plaintiffs for any amount plaintiffs had to pay over and above $1.5 million to get rid of the mortgage, which would give the Nation clear title to the parcel. Plaintiffs do not spell out what defendants were to receive in exchange for this extremely generous arrangement, but I infer that it was a share in the profits of the gaming operations and the Mamakating development project once they got off the ground. Plaintiffs further assert that, after agreeing to those terms, the Petri defendants breached the agreement twice: first, they did not transfer the 107 Parcel to the Nation within fourteen days as they had agreed; and second, they never acted on their promise to reduce the mortgage or clear title to the 106 Parcel. The Petri defendants argue that the Statute of Frauds offers a complete defense to any claim for breach of contract. Because the legal issues surrounding each Parcel are distinct, I address each in turn.
1. The 107 Parcel The alleged promise to transfer the 107 is plainly a contract for the sale of land, and as such must satisfy the New York Statute of Frauds. The Statute of Frauds, codified at N.Y. Gen. Obl. L. § 5-703, requires all contracts for the sale or long-term lease of real property to be in writing and subscribed to by the party charged. The writing itself “must designate all parties, identify and describe the subject matter and state all of the essential terms of a complete agreement.” Wacks v. King,260 A.D.2d 985, 986, 689 N.Y.S.2d 298 (3d Dept.1999). “The writing must set forth the entire contract with reasonable certainty.” O'Brien v. West, 199 A.D.2d 369, 370, 605 N.Y.S.2d 366 (2d Dep't 1993). Where a written instrument is facially insufficient, consideration of parol evidence cannot redeem it. See Wacks, 260 A.D.2d at 987, 689 N.Y.S.2d 298. *16 It goes without saying that the convoluted combination of drafts, signed letters of intent, oral representations and other “promises” that Carruthers contends constitutes his entire contract is not the sort of arrangement that meets the requirements of the Statute of Frauds. The only question is whether there exists some writing that sets forth all of the essential terms of a promise to transfer the 107 Parcel. The answer is no. There is only one document before me that could satisfy the Statute of Frauds: the April 26 Letter of Intent, which is the only document signed by the party to be charged (Petri). The Letter does identify the parties and makes plain that, as part of an overall project contemplating the development of three separate properties (the 106 and 107 Parcels and the Mamakating property), title to the 107 Parcel was to pass to the Nation. Neither the price for the land nor the time at which title is to pass is set forth in the Letter. Nor does the Letter specify how the transfer of the 107 Parcel relates to any of the rest of the overall deal. The Petri defendants argue that, in light of the final sentence of Letter (stating the parties intention to deal in good faith to draft a final agreement in the future), the Letter of Intent is merely an ‘agreement to agree’ and thus does not satisfy the Statute of Frauds. “A preliminary ‘agreement to agree’ ... is unenforceable under the Statute of Frauds.” Checkla v. Stone Meadow Homes, Inc., 280 A.D.2d 510, 511, 720 N.Y.S.2d 532 (2d Dep't 2001). What the Petri defendants are really arguing that they did not enter into a final and binding contract memorializing the terms of the sale of the 107 Parcel. If the parties have not reached a final agreement on the fundamental terms of the deal, no contract has been formed, so compliance with the Statute of Frauds is immaterial. Contrariwise, if two parties reach a true “meeting of the minds” and draft a preliminary document that states with sufficient specificity all material elements of the agreement, the Statute of Frauds is satisfied, even if the parties contemplated redrafting that document. See Tymon v. Linoki, 16 N.Y.2d 293, 298, 266 N.Y.S.2d 357, 213 N.E.2d 661 (1965). There can be no question that the Letter of Intent does not constitute a completed contract for the sale of the 107 Parcel (or, for that matter, for the 106 Parcel). The signed Letter lacks two “material elements” of a completed agreement: the time at which the 107 Parcel is to be transferred (according to the testimony, that date was not chosen until a week after the Letter was signed) and the consideration for that transfer. Both of these missing elements are material under New York law. See Donner v. Septimus, 137 A.D.2d 484, 485, 524 N.Y.S.2d 454 (2d Dep't 1988). The Letter does mention that the “value” of the 107 Parcel was $11 million. But “value” is not the same thing as “purchase price.” Nowhere in the letter does Carruthers agree to pay $11 million for the 107 Parcel, and indeed, he apparently thinks the land was supposed to be transferred to the Tribe for no immediate consideration at all-just a share in the future profits of the non-existent casino and development project. No such form of consideration is tied to the transfer of the 107 Parcel anywhere in the Letter of Intent.FN13 *17 Plaintiffs offer no explanation of the term “value”-they appear to read it out of the agreement entirely. Petri contends that value means “price”-that he was willing to part with the 107 Parcel, but only upon payment of $11 million. An earlier, unsigned “Draft Memorandum” suggests that Petri's assessment it correct: it sets the “price” for the two parcels at $13 million, equal to the “values” of the 106 and 107 Parcels. However, that document was never signed by the party to be charged (Petri) and is not mentioned in the Letter. Thus, I am left with (at best) an ambiguous price term, the most essential element of any contract. Therefore, on its face, the Letter of Intent does not satisfy the Statute of Frauds insofar as it discusses the sale of the 107 Parcel.FN14 Plaintiffs offer three reasons why extrinsic evidence should be considered to transform the flawed Letter (which Plaintiffs do not argue satisfies the Statute) into an enforceable agreement: first, that parol evidence may be considered to elucidate ambiguous terms of the Letter; second, that the doctrine of partial performance, taken with an incomplete written instrument, is sufficient to satisfy the Statute of Frauds; and third, that the Letter is a binding “preliminary agreement” under the Second Circuit's holding in Arcadian Phosphates v. Arcadian Corp., 884 F.2d 69 (2d Cir.1989). None of these arguments works.
i. Parol Evidence Is Not Admissible to Elucidate the Terms of an Incomplete Writing Under the Statute of Frauds. Plaintiffs' contention that extrinsic parol evidence may be admitted to elucidate the terms of the written agreement is incorrect. As stated above, parol evidence is not admissible to clarify an incomplete written instrument under the Statute of Frauds. Wacks, 260 A.D.2d at 987, 689 N.Y.S.2d 298. Tobin v. Union News Co., 18 A.D.2d 243, 244, 239 N.Y.S.2d 22 (4th Dep't 1963), on which plaintiffs rely, dealt with a lease agreement in which the parties' respective obligations were, in the opinion of the court, “neither meaningless nor ambiguous,” and thus satisfied the Statute of Frauds. The document omitted only certain “specifics of implementing” the lease agreement. Id. That is not the case here. The Letter is at best ambiguous (and really, is wholly silent) about how defendants were to be compensated for the 107 Parcel and when plaintiffs were to take title. Moreover, the parol arrangement (allegedly made at the May 1 meeting) that the 107 Parcel would be transferred without additional consideration within two weeks did not “clarify” anything in the Letter of Intent. Rather, it rewrote several key elements of that letter. The Letter of Intent called for the passage of title as Phase II of a three-part development project; the alleged oral May 1 deal called for the 107 Parcel to be transferred by May 15, well before the completion of Phase I of the overall project. Moreover, the Letter of Intent did not mention anything about a down payment for the 107 Parcel and did not link the transfer of that parcel to the transfer of the 106 Parcel, while the purported parol deal called for a $550,000 “down payment” for both the 106 and 107 Parcels and required that title pass to the Tribe without any further payment. This is plainly a different deal from described in the Letter of Intent. Even plaintiffs concede that parol evidence may not be considered to contradict the terms of a written agreement. Id. at 245, 239 N.Y.S.2d 22. If, under the Statute of Frauds, parol evidence is inadmissible to cure ambiguities in a written instrument, it is certainly inadmissible as evidence of a later modification of the written agreement.
ii. The Doctrine of Partial Performance Is Inapplicable Where the Parties' Conduct Was Not Unequivocally Referable to an Oral Agreement. *18 Second, Plaintiffs argue that doctrine of partial performance may be invoked to bind defendant to the terms of an oral agreement in light of both parties' subsequent performance. The doctrine of partial performance in New York is grounded in equity and codified as part of the New York Statute of Frauds. N.Y. Gen. Oblig. Law § 5-703(4) (2006). Simply put, the doctrine holds that an otherwise unenforceable contract for the sale of land may be enforced in equity if plaintiff has relied on defendant's promise and performed some or all of the oral agreement. The doctrine is based on the that it would be fraudulent to permit a defendant to escape performance on a contract after the plaintiff has performed in reliance on an ultimately unenforceable agreement. Messner Vetere Berger Mcnamee Schmetterer Euro RSCG Inc. v. Aegis Grp. PLC, 93 N.Y.2d 229, 235, 689 N.Y.S.2d 674, 711 N.E.2d 953 (1999). However, the doctrine of partial performance may only be invoked where the performance is “unequivocally referable” to the agreement. Id. (citing Burns v. McCormick, 233 N.Y. 230, 232, 135 N.E. 273 (1922)). For plaintiff's actions to be unequivocally referable to the agreement, they must be “ ‘unintelligible or at least extraordinary’, explainable only with reference to the oral agreement.” Anostario v. Vicinzano, 59 N.Y.2d 662, 664, 463 N.Y.S.2d 409, 450 N.E.2d 215 (1983). In this matter, plaintiffs assert that defendants' transfer of the 106 Parcel, clearing of the IDA lien, and acceptance of plaintiffs' money permit this Court to consider evidence of defendants' alleged promise to transfer the 107 Parcel to the Tribe two weeks later. But nothing about those actions is “unequivocally referable” about either party's actions in this case. Plaintiffs paid $549,000 and received in exchange a parcel of land (the 106 Parcel) that, according to the Letter of Intent, had a “value” of $2 million. That transaction stands on its own. Carruthers avers that the 107 Parcel was supposed to be transferred as part of the same deal, but Petri says otherwise. While I am not a trier of fact here, the circumstances strongly suggest that it is Petri rather than Carruthers who should be believed; however, I do not have to credit Petri's version of events to find the doctrine of partial performance inapplicable. The fact that he could have arranged to transfer the 106 Parcel, and only the 106 Parcel, for $549,000 suffices to defeat plaintiffs' argument. I need not reach the Petri Defendants' alternative argument that plaintiffs would be unable to collect money damages under the doctrine of part performance.
iii. The Letter of Intent Is Not A Binding Preliminary Agreement Under the Standard Set Out in Arcadian Phosphates. As a general rule, a contract requires a final meeting of the minds; mere “agreements to agree” are not binding. See supra; see also Joseph Martin Jr. Delicatessen v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541 (1981). New York courts, however, recognize certain enforceable “preliminary agreements” that may bind the parties without comprising a complete contract. Arcadian Phosphates Inc. v. Arcadian Corp., 884 F.2d 69, 72 (2d Cir.1989) (citing Teachers Ins. & Annuity Ass'n v. Tribune Co., 670 F.Supp. 491 (S.D.N.Y.1987)). *19 The first type of binding preliminary agreement (a so-called “Type I” agreement) is a written document that sets out in sufficient detail all elements of the agreement, but nevertheless contains a clause asserting that the document is to be re-drafted. Such agreements are wholly binding on the parties just as a completed contract would be. Arcadian Phosphates Inc., 884 F.2d at 72. cf. Tymon, 16 N.Y.2d at 298, 266 N.Y.S.2d 357, 213 N.E.2d 661. “The key, of course, is the intent of the parties.” Adjustrite Sys., Inc. v. GAB Bus. Servs., Inc., 145 F.3d 543, 548 (2d Cir.1998). In judging intent, courts are instructed to look to the language of the agreement, the context of the negotiations, the existence of open terms, partial performance, and the necessity of putting the agreement in final form. Arcadian Phosphates Inc., 884 F.2d at 72. |