Plaintiff and defendant agreed to terms of a purchase by plaintiff from defendant of two commercial mortgages. Various emails establish an agreed price of $2,200,000, a down payment of $220,000, communications between counsel for each side and between principals from each side agreeing to the terms. Plaintiff signed the agreement and sent it and the down payment, simultaneously advising defendant it had done so, Defendant's principal responded within ten minutes in a positive way, but, alas, the defendant never signed the contract. Importantly, the defendant did not immediately return the down payment, but kept it for a week, and then sold the mortgages to a different party. Supreme Court granted summary judgment to Defendant because the agreement was required to be signed by both parties. The Appellate Division, First Department disagreed, finding that the Defendant's actions were not clearly reliant on a signed contract and that the intention of the parties was a material issue of fact to be determined. The court distinguished Jordan Panel Sys. Corp. v. Turner Constr. Co. 45 A.D.3d 165, upon which two dissenting members of the court relied. Sometimes actions might speak louder than unsigned contracts.
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