The Second Department determined defendants’ own motion papers raised a question of fact whether defendants intended to be bound by an unexecuted limited liability company operating agreement. Therefore defendants’ motion for summary judgment in this breach of contract action was properly denied without reference to the opposing papers:
Contrary to the defendants’ contention, the agreement does not, on its face, demonstrate that the parties did not intend to be bound absent formal execution … . Moreover, in support of their motion, the defendants submitted emails exchanged between the parties and their respective attorneys. The defendants failed to eliminate triable issues of fact as to whether the parties had agreed upon the major terms of the agreement and whether the parties began to perform the agreement. Accordingly, they failed to establish, prima facie, that the parties did not intend to be bound by the terms of the agreement … . Therefore, the defendants were not entitled to summary judgment, regardless of the sufficiency of the plaintiffs’ opposition papers … . 223 Sam, LLC v 223 15th St., LLC, 2018 NY Slip Op 03118, Second Dept 5-2-18
CONTRACT LAW (UNEXECUTED AGREEMENT, DEFENDANTS’ OWN MOTION PAPERS RAISED A QUESTION OF FACT WHETHER THE PARTIES INTENDED TO BE BOUND BY AN UNSIGNED LLC OPERATING AGREEMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/UNEXECUTED CONTRACTS (DEFENDANTS’ OWN MOTION PAPERS RAISED A QUESTION OF FACT WHETHER THE PARTIES INTENDED TO BE BOUND BY AN UNSIGNED LLC OPERATING AGREEMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/UNSIGNED CONTRACTS (DEFENDANTS’ OWN MOTION PAPERS RAISED A QUESTION OF FACT WHETHER THE PARTIES INTENDED TO BE BOUND BY AN UNSIGNED LLC OPERATING AGREEMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))