Contracts—Motion To Dismiss—Parties Had Never Intended To Be Bound by Contract Unless Defendant Signed the Contract—E-Mails Constituted Documentary Evidence That There Was No Mutual Assent and Intent To Be Bound by the Contract—Emails Were "Indicative of a Trend… In Which…Business Communications Have Taken Place Virtually Rather Than Through Telephone Conversations or In-Person Meetings"—An Agent, Including an Attorney, "May Only Bind a Party to a Real Estate Contract If Authorized In Writing To Do So…."—Award of Costs and Expenses When Notice of Pendency Is Cancelled Is Discretionary—No Evidence of Actual Costs and Expenses—Seller Sold Property at Higher Price—Specific Performance Denied—Deposit Must Be Returned

A defendant seller (seller) decided not to "consummate a sale" to the plaintiff. The alleged contract of sale (alleged contract) provided for a purchase price of $9,500,000. The seller instead sold the property to the proposed intervenor in the subject litigation (intervenor), for $9,700,000.

The plaintiff alleged that it had a "legally binding and enforceable" contract with the seller, the seller "reneged" and had "improperly entered into" a contract with the intervenor and the seller still held the plaintiff's $475,000 down payment. The seller denied that the alleged contract was "legally binding and enforceable" and was willing to return the down payment.