                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       521606
________________________________

WFE VENTURES, INC.,
                      Appellant,
     v                                      MEMORANDUM AND ORDER

FREDERICK A. MILLS et al.,
                    Respondents.
________________________________


Calendar Date:   March 21, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Flink Smith Law LLC, Albany (Jay A. Smith of counsel), for
appellant.

      Phillips Lytle LLP, Buffalo (Ryan A. Lema of counsel), for
respondents.

                             __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Buchanan, J.),
entered December 5, 2014 in Essex County, which granted
defendants' motion to set aside the verdict and dismissed the
complaint.

      At all times relevant, defendants were the owners of
approximately 110 acres of land located in the Town of North
Elba, Essex County. In late 2005 or early 2006, defendants
placed an advertisement in a local newspaper indicating that the
property was for sale. Following an initial investigation into
the parcel, plaintiff – through its president, Peter Coffrin –
contacted defendant Frederick A. Mills to discuss purchasing the
property. Mills advised Coffrin that the property contained 22
lots – two of which Mills intended to retain for personal use,
                              -2-                521606

leaving approximately 101 acres (and what was anticipated to be
20 building lots) available for sale. After defendants obtained
the required subdivision permit from the Adirondack Park Agency
(hereinafter APA), plaintiff and defendants entered into an
option agreement on May 31, 2006, pursuant to the terms of which
plaintiff was granted an exclusive one-year option to purchase
the property.1 The purchase price – as per the attached (and
unexecuted) contract of sale – was set at $2 million. The option
agreement was set to expire on May 31, 2007. In the event that
plaintiff failed to exercise its option prior to the expiration
of the agreement, defendants were permitted to retain the
$200,000 initially paid by plaintiff as consideration in
connection therewith.

      Shortly after paying defendants the moneys required under
the option agreement, plaintiff submitted an application to the
APA seeking to further subdivide the 101 acres into the desired
20 residential building lots. According to Coffrin, after
examining the property more closely and taking into consideration
the parcel's topography and wetlands, plaintiff and the APA
collectively concluded that 17 building lots "would be a better
number." Although Coffrin acknowledged that the proposed project
could still go forward with 17 lots, he further indicated that
plaintiff needed 20 lots "in order for [the] financial analysis
to work" and, with fewer lots, the project would be less
profitable. To that end, in late April 2007, Coffrin contacted
Mills and attempted to renegotiate the parties' agreement.2
Those efforts failed and, in June 2007, defendants entered into a
contract to sell the property to a third party for $1.85 million.


    1
        This initial subdivision permit allowed defendants to
create three parcels out of the approximately 110 acres at issue
– the 101-acre parcel upon which plaintiff held the option to
purchase and the two five-acre parcels retained by defendants.
    2
        Although Coffrin couched these negotiations in terms of
merely amending and/or seeking an extension of the original
option agreement, the record reflects that such discussions
actually amounted to a wholesale renegotiation of the underlying
purchase and sale agreement.
                              -3-                521606

      Plaintiff thereafter commenced this action setting forth
six causes of action sounding in breach of contract, fraud in the
inducement, unjust enrichment and tortious interference with
contract. Defendants answered – raising various affirmative
defenses and counterclaims – and thereafter moved for summary
judgment dismissing the complaint. Supreme Court granted
defendants' motion as to the unjust enrichment claim and denied
the balance of the requested relief. The matter proceeded to
trial and, at the close of proof, Supreme Court dismissed
plaintiff's fraud cause of action.3 The jury thereafter returned
a verdict in favor of plaintiff, finding that defendants agreed
to extend plaintiff's option to purchase the property, and
awarded plaintiff $200,000 in damages. A judgment to that effect
was entered in June 2014.

      Defendants subsequently moved to set aside the verdict
alleging, among other things, that the purported oral agreement
to extend plaintiff's option to purchase was unenforceable and
violated the statute of frauds and that the verdict was against
the weight of the evidence. In November 2014, Supreme Court
granted defendants' motion, finding, among other things, that
there was insufficient evidence to establish that the parties
orally agreed to modify/extend the option agreement. Having so
concluded, Supreme Court did not address the statute of frauds
issue. Supreme Court's resulting order was entered on December
5, 2014 and a judgment to that effect was entered on February 10,
2015. Plaintiff now appeals from Supreme Court's December 2014
order granting defendants' motion to set aside the verdict.

      Initially, we reject defendants' assertion that this appeal
is not properly before us. While it is true that "[t]he right to
appeal from a nonfinal order terminates upon the entry of a final
judgment" (Matter of County of Nassau v State of New York, 100
AD3d 1052, 1056 [2012] [internal quotation marks and citation
omitted], lv dismissed and denied 20 NY3d 1092 [2013]), the order


    3
        While not entirely clear from the record, it appears that
plaintiff's tortious interference with contract claim was
withdrawn or dismissed prior to trial, as only plaintiff's breach
of contract claims were submitted to the jury for consideration.
                              -4-                521606

appealed from is a final order and, therefore, "the right of
direct appeal did not terminate upon entry of the judgment[]"
(Aaron v Pattison, Sampson, Ginsburg & Griffin, P.C., 69 AD3d
1084, 1085 n 4 [2010]).

      "A jury verdict may be set aside as against the weight of
the evidence only when the evidence preponderates so greatly in
the movant's favor that the jury could not have reached its
conclusion on any fair interpretation of the evidence" (Matter of
State of New York v James Z., 97 AD3d 1046, 1047 [2012] [internal
quotation marks, brackets and citations omitted], lv denied 20
NY3d 853 [2012]; see Revell v Guido, 124 AD3d 1006, 1010 [2015]).
Based upon our review of the record as a whole, we are satisfied
that this standard was met here. "The essential elements of a
cause of action to recover damages for breach of contract are the
existence of a contract, the plaintiff's performance pursuant to
the contract, the defendant's breach of its contractual
obligations, and damages resulting from the breach. To create a
binding contract, there must be a manifestation of mutual assent
sufficiently definite to assure that the parties are truly in
agreement with respect to all material terms. A court cannot
enforce a contract unless it is able to determine what in fact
the parties have agreed to. Accordingly, if an agreement is not
reasonably certain in its material terms, there can be no legally
enforceable contract" (Carione v Hickey, 133 AD3d 811, 811 [2015]
[internal quotation marks, brackets and citations omitted]).

      There is no dispute that the option agreement expired on
May 31, 2007 without plaintiff exercising its rights thereunder.
Indeed, Coffrin candidly testified that plaintiff allowed the
option agreement to expire because it "wanted a reduction of the
sales price and an extension o[f] the option terms." As to the
issue of whether the parties ever reached an agreement in this
regard, Coffrin detailed plaintiff's efforts to renegotiate the
parties' deal, and the record contains a series of proposals –
beginning in April 2007 – that were transmitted back and forth
between Coffrin and Mills. Although Coffrin testified that he
and Mills "were essentially in agreement on an extension," the
record is – as Supreme Court aptly observed – devoid of proof
that defendants ever actually agreed (either orally or in
writing) to extend the option agreement or otherwise modify the
                              -5-                  521606

terms of the option agreement or the related purchase and sale
contract. Indeed, while Mills acknowledged he and Coffrin were
"try[ing] to work something out," he repeatedly testified that
there was no "meeting of the minds" as to any of the essential
terms – including the sale price and financing options – and that
they "never had a deal." Mills' testimony in this regard is
substantiated by the various proposals themselves, which reveal
an evolving series of suggested prices, terms and option
expiration dates. As the record fails to establish that the
parties successfully and definitively resolved these and other
material issues, the jury's finding – that defendants agreed to
extend plaintiff's option to purchase the property – cannot
stand, and Supreme Court properly granted defendants' motion to
set aside the verdict upon this ground.

      With respect to the balance of plaintiff's appeal,
plaintiff's alternative theory of implied contract was not raised
at the trial level and, therefore, is not properly before us (see
e.g. Albany Eng'g Corp. v Hudson River/Black Riv. Regulating
Dist., 110 AD3d 1220, 1222 [2013]). Additionally, having
concluded that there was no oral extension of the option
agreement in the first instance, we need not consider whether any
such agreement would – as plaintiffs contend – fall within an
exception to the statute of frauds (see Spier v Southgate Owners
Corp., 39 AD3d 277, 278 [2007]). Accordingly, Supreme Court's
order is affirmed.

     Garry, J.P., Lynch, Devine and Clark, JJ., concur.


     ORDERED that the order is affirmed, with costs.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
