Smith v. Town of East Hampton

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), entered October 17, 1991, which dismissed the complaint. The plaintiffs notice of appeal from an order dated September 17, 1991, is deemed a premature notice of appeal from the judgment (CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

The Town of East Hampton (hereinafter the Town) co-sponsored a competition with the Beaux Arch '89 Committee (hereinafter the Committee) for the design of a new airport terminal. Part of the agreement was that the Town would award the design contract to one of the finalists chosen by the Committee if the finalists met certain requirements. The *479plaintiff, an architectural firm which claims that it was chosen by the Town as having submitted the winning design, commenced an action against the Town for failure of the Town to award it the design contract, claiming that it met the requirements. The Town subsequently moved to dismiss the action, inter alia, for failure to state a cause of action. The Town’s motion was granted and this appeal ensued.

We find that the plaintiff did not state a cause of action to recover damages for breach of contract against the Town. There was nothing in the agreement between the Town and the Committee or in the competition design program which set forth the terms of a contract between the Town and the winning competitor. Because of its indefiniteness, the agreement to award a design contract to one of the finalists was not enforceable (see, Martin Delicatessen v Schumacher, 52 NY2d 105).

We also find that the plaintiff did not serve a notice of claim with respect to its tort claims.

We have examined the plaintiff’s remaining contentions and find them to be without merit. Sullivan, J. P., Pizzuto, Joy and Goldstein, JJ., concur.