Procan Construction Co. v. Oceanside Development Corp.

In an action, inter alia, to recover damages for breach of an oral contract, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Levitt, J.), entered April 18, 1988, which is in favor of the defendant and against it, after a nonjury trial. Ordered that the judgment is affirmed, with costs. The instant action arose from an alleged oral contract to provide additional compensation to the plaintiff to perform [690] masonry work in the defendant’s condominium development. When the plaintiff discovered that the price it had negotiated in a separate written contract would not allow it to earn a profit on the job, it sought an additional $51,000 in compensation. Contrary to the plaintiff’s contention, however, the trial court was correct in its finding that no oral agreement was ever reached. Indeed, crediting the candid testimony of the plaintiff’s president, at best the parties entered into an unenforceable agreement to agree (cf., Tamir v Greenberg, 119 AD2d 665, lv denied 68 NY2d 607). Under these circumstances, the plaintiff’s unilateral miscalculations do not entitle it to additional compensation not intended by the parties. We have examined the plaintiff’s remaining contentions and find them to be without merit (see, Friedrich v Martin, 294 NY 588). Lawrence, J. P., Rubin, Eiber and Balletta, JJ., concur.