You are here: / / THE FACT THAT THE AMOUNT TO BE USED TO CALCULATE DEFENDANT’S COMPENSATION...

THE FACT THAT THE AMOUNT TO BE USED TO CALCULATE DEFENDANT’S COMPENSATION WAS NOT SET IN THE CONTRACT, BUT RATHER WAS TO BE ESTABLISHED AND AGREED TO, DID NOT INVALIDATE THE CONTRACT AS A MERE AGREEMENT TO AGREE; THE AMOUNT COULD BE DETERMINED BY EXTRINSIC INFORMATION.

The Third Department, reversing (modifying Supreme Court) determined a material term of a contract could be adequately fleshed out by extrinsic evidence. Therefore the contract should not have been invalidated as a mere “agreement to agree.” Defendant was hired as a consultant by plaintiff, the parent company of a number of banks, to maximize income from overdrafts. Defendant’s fee was to be based on plaintiff’s income over a “baseline” amount to be established by defendant (and agreed to by plaintiff):

Supreme Court determined that, because the baseline was an indefinite material term, the agreement was unenforceable as a “mere agreement to agree” … . We do not agree. “[W]here it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain. Striking down a contract as indefinite and in essence meaningless is at best a last resort” … . If, “at the time of agreement the parties have manifested their intent to be bound, a price term may be sufficiently definite if the amount can be determined objectively without the need for new expressions by the parties; . . . for example, [the price term might] be . . . ascertained by reference to an extrinsic event” … . Here, the parties’ conduct evinced that they intended to be bound by the agreement and, in our view, the baseline could be ascertained with reference to an extrinsic event, that is, defendant’s calculation derived from the existing historical data … . Accordingly, we find that the agreement was enforceable. Tompkins Fin. Corp. v John M. Floyd & Assoc., Inc., 2016 NY Slip Op 07252, 3rd Dept 11-3-16

CONTRACT LAW (THE FACT THAT THE AMOUNT TO BE USED TO CALCULATE DEFENDANT’S COMPENSATION WAS NOT SET IN THE CONTRACT, BUT RATHER WAS TO BE ESTABLISHED AND AGREED TO LATER, DID NOT INVALIDATE THE CONTRACT AS A MERE AGREEMENT TO AGREE; THE AMOUNT COULD BE DETERMINED BY EXTRINSIC INFORMATION)

You might also like
A DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES IS SUFFICIENT TO SUPPORT CIVIL COMMITMENT IN A SECURE FACILITY PURSUANT TO CPL 330.20.
Statute of Limitations Defense in Article 78 Proceeding Waived Because Not Raised in Answer or Pre-Answer Motion to Dismiss
QUESTIONS OF FACT ABOUT WHETHER DECEDENT’S WIFE IS A BORROWER WITHIN THE MEANING OF THE REVERSE MORTGAGE DOCUMENTS PRECLUDES SUMMARY JUDGMENT, IF DECEDENT’S WIFE IS A BORROWER SHE MAY REMAIN IN THE MORTGAGED PREMISES, IF NOT, FORECLOSURE CAN PROCEED.
MOTHER’S OBJECTIONS TO THE CHILD SUPPORT ORDER WERE NEVER SERVED ON FATHER’S COUNSEL; THE SUBSEQUENT ORDER GRANTING THE OBJECTIONS IS VOID (THIRD DEPT). ​
Criteria for Sexual Harassment Lawsuit Against Employer Explained
CAUSE OF ACTION ALLEGING NEGLIGENT MAINTENANCE OF A SEWER SYSTEM SHOULD NOT HAVE BEEN DISMISSED.
THE RECORD DID NOT INDICATE THE HEARING OFFICER ASSESSED THE RELIABILITY OF CONFIDENTIAL INFORMATION; MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT).
AN ALBANY LOCAL LAW ADDED RESTRICTIONS TO EVICTION PROCEEDINGS AND RENT INCREASES WHICH ARE NOT IN THE STATE’S REAL PROPERTY ACTIONS AND PROCEEDINGS LAW AND REAL PROPERTY LAW; THE LOCAL LAW WAS THEREFORE PREEMPTED BY THE STATE LAW (CONFLICT PREEMPTION) (THIRD DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED... ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS...