Agreements to Agree Are Not Enforceable Contracts

By: Jeffrey M. Haber

In Kassirer v. Gotlib, 2026 N.Y. Slip Op. 02154 (1st Dept. Apr. 9, 2026), the Appellate Division, First Department, reaffirmed a bedrock principle of New York contract law: agreements to agree are not enforceable. The case arose from an alleged oral agreement to pursue a Manhattan real estate acquisition through yet‑to‑be‑formed entities, with ownership interests, management rights, and funding obligations left largely undefined. Although the plaintiff contributed $1.6 million toward the venture, the Court held that the purported agreement lacked the definiteness required to form a binding contract. The absence of agreed-upon material terms, combined with the sophistication and complexity of the contemplated transaction, rendered the arrangement nothing more than a preliminary, nonbinding framework. As a result, the Court dismissed the plaintiff’s breach of contract and declaratory judgment claims, underscoring that intent and partial performance cannot cure fundamental contractual vagueness.

Kassirer v. Gotlib

[Eds. Note: the factual discussion that follows was distilled from the decisions of the courts in this case and the parties’ briefing on appeal.]

Plaintiffs, Isaac Kassirer, and his entity, Emerald Equity Group LLC (“Emerald”), alleged that Kassirer and the individual defendants entered into an oral agreement to purchase a piece of Manhattan real estate through defendant 685 Investors LLC, that Kassirer arranged for third-party financing of $25 million toward a $30 million deposit and that the three individual parties agreed to each make up the remaining $5 million by paying $1,660,000.

According to plaintiffs, the oral agreement provided that (1) the parties would work together to acquire some or all of the properties; (2) Kassirer would “fund or procure sources of funding” for any downpayment that “may” be required and would fund or procure a third of the funds “required to acquire whatever Properties the defendants decided to acquire; (3) Kassirer would receive one-third of the membership interests in a limited liability company (that was not yet formed) that would act as the manager “of the entity/entities which would own, either directly or through subsidiaries, some or all of the Properties”; and (4) “upon the first closing of the purchase of any of the Properties,” $1,660,000 would be returned to Kassirer.

Kassirer’s portion was paid through Emerald. Kassirer claims that defendants thereafter shut him out of the venture, making him only a limited partner.

Plaintiffs brought suit, seeking (1) a judgment declaring that he was a one-third partner in defendant 685 Manager LLC and entitled to a share of certain fees and distributions, and (2) the return of his $1.6 million, under theories of breach of contract and unjust enrichment.  Defendants moved to dismiss the complaint.

Among other arguments, defendants argued that plaintiffs failed to allege the existence of an enforceable contract. At most, said defendants, plaintiffs alleged only an unenforceable agreement to agree – that is, an agreement to later agree on the terms of an operating agreement for a limited liability company.

According to defendants, at most, there was an oral agreement to split membership interests in a yet-to-be-formed entity that would manage another yet-to-be-formed entity that would own Manhattan real estate, and if a down payment was required, Kassirer would contribute a third of the down payment and a third of the purchase price.

In other words, defendants argued that plaintiffs failed to plead the existence of an oral agreement with sufficient detail to make it binding. Instead, defendants argued that plaintiffs pleaded an inchoate “agreement,” made on an unspecified date to acquire some unspecified real estate and to split membership interests in a nonexistent entity that was to manage another nonexistent entity that would own unspecified properties. Because plaintiffs failed to plead any of the material terms of the agreement, let alone that there was mutual assent to those terms, defendants argued, plaintiffs failed to plead the existence of a contract at all.

The motion court denied the motion to dismiss. The First Department unanimously modified the order to the extent of granting the motion to dismiss plaintiffs’ first and second causes of action for a declaratory judgment and breach of contract and otherwise affirmed.

Governing Legal Principles

To establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound.  Mutual assent or the meeting of the minds must include agreement on all essential terms.[1] The threshold inquiry is “whether there is a sufficiently definite offer such that its unequivocal acceptance will give rise to an enforceable contract.”[2] “Impenetrable vagueness and uncertainty will not do.”[3] 

When “there are sufficient material terms absent from the” alleged contract, no enforceable agreement exists.[4]  Additionally, when the subject matter of the alleged agreement is complex and of the type usually put in writing, courts are even more likely to conclude that there is no agreement.[5] 

Finally, when a material term of a purported agreement is left for future negotiations, courts hold that, at most, there is only an unenforceable agreement to agree.[6]

The First Department’s Decision

The Court held that “[t]he [motion] court should have granted defendants’ motion to dismiss the breach of contract claim.”[7] The Court found that “the parties’ purported oral agreement [was] plainly nothing more than an unenforceable ‘agreement to agree’” “[g]iven the plethora of vague and missing material terms.”[8]

Takeaway

Kassirer reaffirms a core principle of New York contract law: courts will not enforce preliminary understandings that lack definite, agreed-upon material terms. Arrangements that leave essential terms open for future negotiation are, at most, an unenforceable agreement to agree.

To plead an enforceable contract, a plaintiff must allege mutual assent to all essential terms. That requirement was not met in Kassirer. The alleged oral agreement contemplated the future purchase of unspecified real estate, through entities that had not yet been formed, pursuant to operating agreements that did not yet exist, with funding and repayment obligations that were contingent and ill-defined. In the Court’s opinion, this was not a completed bargain but an framework dependent on future decisions and negotiations, which New York does not recognize as binding.

The decision makes clear that plaintiff’s contribution of $1.6 million did not alter the Court’s analysis. While defendants acknowledged receipt of the funds, payment alone cannot supply missing material terms or establish mutual assent. As the Kassirer Court explained, the exchange of consideration does not transform an indefinite, forward-looking understanding into a binding contract. Without a contract, plaintiff’s claim for breach of contract necessarily failed.

Ultimately, Kassirer underscores a fundamental rule on contract enforcement: where essential terms are left unresolved, there is no enforceable contract. Courts will enforce agreements the parties actually made, not the deals they hoped to complete later.

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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes only and is not intended to be, and should not be, taken as legal advice.

Unless otherwise stated, Freiberger Haber LLP’s articles are based on recently decided published opinions and not on matters handled by the firm.

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[1] Kowalchuk v. Stroup, 61 A.D.3d 118, 121 (1st Dept. 2009). 

[2] Express Indus. & Terminal Corp. v. N.Y. State Dept. of Transp., 93 N.Y.2d 584, 589-90 (1999) (citation omitted).

[3] Id. (citation omitted).

[4] Argent Acquisitions, LLC v. First Church of Religious Science, 118 A.D.3d 441, 445 (1st Dept. 2014); see also Caniglia v. Chicago Tribune-New York News Syndicate, 204 A.D.2d 233, 234 (1st Dept. 1994) (“The IAS Court properly dismissed, without leave to replead, the plaintiffs’ first cause of action, purporting to set forth a cause of action for breach of contract, as too indefinite, and therefore, unenforceable, for plaintiffs’ failure to allege, in nonconclusory language, as required, the essential terms of the parties’ purported . . . contract[.]”).

[5] See Manufacturers Hanover Trust Co. v. Margolis, 115 A.D.2d 406, 407 (1st Dept. 1985); Emigrant Bank v. UBS Real Estate Secs., Inc., 2007 WL 5650108 (Sup. Ct., N.Y. County Mar. 14, 2007) (when “a contract of this magnitude and complexity is of a type usually committed to writing,” that weighs against finding a non-written, enforceable agreement); Al-Bawaba.com, Inc. v. Nstein Techs. Corp., 25 Misc. 3d 1245(A) (Sup. Ct., Kings County 2009) (no oral agreement when it is “clearly the sort of complex, legally-sophisticated contract that necessarily would require a writing”).

[6] Argent, 118 A.D.3d 441, 445 (citing Joseph Martin, Jr., Delicatessen v. Schumacher, 52 N.Y.2d 105, 109 (1981)); see also Srivatsa v. Rosetta Holdings LLC, 213 A.D.3d 514, 514 (1st Dept. 2023) (oral agreement to grant shares in an LLC was “at most, an unenforceable agreement to agree”).

[7] Slip Op. at *1

[8] Id. (citing Srivatsa, 213 A.D.3d at 514-515).