Paul A. Martineau, Respondent-Appellant, v. John A. Horn et al., Appellants-Respondents

Paul A. Martineau, Respondent-Appellant, v John A. Horn et al., Appellants-Respondents. [646 NYS2d 291] [MAJORITY] —In an action, inter alia, for a judgment declaring that a "memorandum of understanding” executed September 24, 1991, is a valid contract, the defendants appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered June 20, 1995, which denied those branches of their motion which were for summary judgment dismissing the first, fourth, fifth, and sixth causes of action, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied those branches of his cross motion which were for summary judgment declaring that the "memorandum of understanding” constituted a valid contract. Ordered that the order is reversed insofar as appealed from by the defendants, those branches of the defendants’ motion which were to dismiss the first, fourth, fifth, and sixth causes of action are granted and those causes of action are dismissed; and it is further, Ordered that the order is affirmed insofar as cross-appealed from; and it is further, Ordered that the defendants are awarded one bill of costs. The court erred in declining to dismiss the first, fourth, fifth, and sixth causes of action inasmuch as there were material terms of the contract left open for future agreement (see, Martin Delicatessen v Schumacher, 52 NY2d 105). Thompson, J. P., Copertino, Krausman and Florio, JJ., concur.