The Third Department affirmed the dismissal of a complaint seeking attorneys fees from the City for the defense of a police officer who allegedly pointed a loaded weapon at a coworker. At one point the City and the defense attorney exchanged letters concerning the lawyer’s fees and the City offered to pay the defense attorney $150.00 an hour. The breach of contract cause of action was based on those letters. In addition to determining there was no contract, the Third Department explained the flaws in the promissory estoppel, unjust enrichment, quantum meruit and fraud causes of action. In finding that the letters did not constitute a contract, the Third Department wrote:
“For a contract to be created, regardless of whether it is bilateral or unilateral, ‘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'” … . Price is a material term of a contract … ..
The complaint here alleges that [the City’s] letters constituted a unilateral contract whereby [the City] agreed to pay [defense counsel] at the rate of $150 per hour, and that the contract became binding when [defense counsel] performed under the contract by representing [the officer]. Plaintiffs cannot prevail because their allegations are flatly contradicted by documentary evidence. [Defense counsel’s] invoice billed defendant at the rate of $350 per hour for his time and at other rates – all higher than listed in his ….estimate – for his staff. This invoice contradicts plaintiffs’ assertion that the parties had agreed on all material terms of a contract, namely a price of $150 per hour … . As documentary evidence refutes the allegations and establishes that no valid contract had been formed, Supreme Court properly dismissed the cause of action for breach of contract… . DerOhannesian v City of Albany, 515875, 3rd Dept 10-24-13