ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

October 08, 2015

A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract


A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract
Offit v Herman, 2015 NY Slip Op 07056, Appellate Division, First Department

Michael Offit contended that a memorandum of understanding [MOU] that the parties had signed was a "Type II" agreement under federal case law,* requiring Julian M. Herman to negotiate in good faith to finalize a settlement of various lawsuits among the parties.

Citing IDT Corp. v Tyco Group, 13 NY3d 209, the Appellate Division said the New York Court of Appeals has rejected "the rigid classification into Types'" in favor of asking "whether the agreement contemplated the negotiation of later agreements and if the consummation of those agreements was a precondition to a party's performance."

The MOU at issue stated that the parties had reached an "agreement in principle, subject to documentation acceptable to the parties and court approval." However, noted the Appellate Division, in prior motion practice, counsel for Offit admitted that the MOU was merely "an agreement to agree."

* The differences between Type I preliminary agreements and Type II preliminary agreements as applied by the federal courts is considered at:

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com