Decision/Order *1 This is a breach of contract action based on defendants’ alleged wrongful refusal to sell an ancient Greek statue — a Kore — to plaintiff Arnon Ltd (IOM) (Arnon). Defendants William Beierwaltes, Lynda Beierwaltes, Phoenix Ancient Art S.A. (Phoenix), and Hicham Aboutaam move (in Motion Seq. No. 4), pursuant to CPLR 3212, for summary judgment dismissing the complaint and awarding them judgment on their first counterclaim for a declaratory judgment and their sixth counterclaim for damages allegedly incurred as a result of a preliminary injunction previously issued in this case. Plaintiff cross-moves for leave to amend the complaint to add David Sofer as a plaintiff.1 Plaintiff separately moves (in Motion Seq. No. 5), pursuant to CPLR 3212, for summary judgment awarding plaintiff judgment on its first and second causes of action for breach of contract and replevin, respectively, and dismissing defendants’ first counterclaim for a declaratory judgment, second counterclaim for breach of contract, sixth *2 counterclaim for damages from the preliminary injunction, and seventh through tenth counterclaims for conversion, unjust enrichment, quantum meruit, and breach of contract stemming from a separate transaction.BackgroundPlaintiff Arnon is “a corporation duly organized and existing under the laws of the Isle of Man and resident in the Isle of Man.” (Joint Statement of Material Facts [Joint Statement]1.) Arnon is “owned by Arnon River Trust [Arnon Trust], a trust organized and existing under the laws of the Isle of Man and resident in the Isle of Man, which was settled by, and for the benefit of, David Sofer.” (Joint Statement1.) The alleged “sole purpose” of Arnon “is to own the artwork collection of David Sofer.” (Compl.2.)2 As attested by Mr. Sofer, and not disputed by defendants, Mr. Sofer is not an employee, officer, or director of Arnon; rather, Arnon is controlled by “independent directors who act in their discretion.” (Aff. of David Sofer, dated July 29, 2015,2 [7/29/15 Sofer Aff.].) These directors are Marion Louis de Carte and Gordon Mundy. (de Carte Dep. at 6-8 [Bergman Aff., Exh. K].) Ms. de Carte is an employee, and Mr. Mundy is a director, of Trident Trust Company (Trident), another Isle of Man corporation, which serves as the trustee to Arnon Trust as well as the secretary of Arnon. (Id. at 11-12, 15.)3The Beierwaltes are residents of Colorado and owners of the Kore. (Joint Statement5.) “At all relevant times, Phoenix was the agent of the Beierwaltes with full and exclusive power to enter into a contract for, and conclude a sale of, the Kore.” (Id.6.) Phoenix is a Swiss *3 corporation and resident in the Canton of Geneva. (Id.2.) At the time of the disputed sale, Phoenix’s agent in New York was Petrarch LLC, d/b/a Electrum. (Id.3.) Mr. Hicham Aboutaam and Mr. Gherardi “were employees of Electrum.” (Id.4.)It is undisputed that on or about January 4 or 5, 2013, Mr. Sofer visited Phoenix’s New York gallery and offered to purchase the Kore. (H. Aboutaam Aff.9 [Bergman Aff., Exh. F]; Sofer Dep. at 96:4-97:14 [Bergman Aff., Exh. L].) No agreement was reached that day; but both Mr. Sofer and Mr. Aboutaam testified that by the end of the weekend, they settled on a purchase price of $650,000. (Sofer Dep. at 96:14-97:18; H. Aboutaam Dep. at 80:9-81:23 [Bergman Aff., Exh. M].)The parties sharply dispute the details of the conversations that took place between Mr. Sofer and Mr. Aboutaam regarding the terms of the sale. Their dispute centers on whether Mr. Aboutaam “stress[ed] that time would be of the essence,” and whether Mr. Sofer agreed to pay within four days. (H. Aboutaam Aff.9; Sofer Aff., dated Feb. 25, 2013,14 [2/25/13 Sofer Aff.] [Bergman Aff., Exh. 1].) In the period between January 10, 2013 and January 22, 2013, the parties engaged in extensive communications by email as to the time for payment, the identity of the party to which payment would be made, wiring instructions, and the need for written documentation including a formal agreement and invoice. These emails commenced with a January 10 email from Ms. Beierwaltes to Mr. Sofer at his personal email address, stating that “I’m so pleased you are buying our wonderful kore,” and that “Hicham [Aboutaam] has total [sic] me you will be wiring funds within four days of receipt of invoice….” (Bergman Aff., Exh. HH.) This email was followed by an email from Mr. Sofer to Ms. Beierwaltes, dated January 12, 2013, which was copied to Mr. Hicham Aboutaam and Ms. de Carte, and which stated in full: *4 “Hi Lynda,Arnon Ltd. (IOM), is part of my trust and is managed by independent directors.It will be easier and faster if all the logistics of the sale (formal short agreement, invoice with photos etc.) be done by Phoenix Ancient Art and Hicham Aboutaam. I will send Hicham a copy of this email, and ask him to take care of it.It is Arnon Ltd. [sic] intention that your wonderful Kore will be exhibited for a long term at the Metropolitan Museum in New York.Thank you for your email. I hope that when you and bill come to London I will have the opportunity to meet you and to show you my collections.Best wishes,David”(Bergman Aff., Exh. AA [format in original].) These emails were followed by emails further discussing the terms. (Id., Exhs. JJ, II, X; Gette Aff., Exh. L.) By email dated January 25, 2013, from Hicham Aboutaam to Mr. Sofer, entitled “Sale Cancellation,” Mr. Aboutaam informed Mr. Sofer “that the sale is cancelled because the conditions have not been met.” (Bergman Aff., Exh. Z.) The unsatisfied conditions were not specified. This action was commenced shortly afterward, on or about February 4, 2013.ContentionsIn moving for summary judgment dismissing plaintiff’s breach of contract cause of action, defendants contend, as a threshold matter, that Mr. Sofer did not have authority to enter into a contract for the Kore, and that Arnon never ratified the contract. (Defs.’ Memo. in Supp. at 1-6.)4 In the alternative, defendants contend that plaintiff and defendants never reached a *5 meeting of the minds on “the time and method of payment” or that, if a contract was made, it was cancelled for breach of the payment terms. (Id. at 6-9.)5In opposition to defendants’ motion and in support of its own motion for summary judgment on its breach of contract cause of action, Arnon does not dispute that “Sofer did not have formal agency powers for Arnon generally.” (Pl.’s Memo. In Opp. at 6.) Rather, Arnon contends that “in this one instance, Sofer had authority to bind Arnon.” (Id. at 5.) Arnon claims that “questions of implied actual and apparent authority are relevant in cases such as this one when there is no express appointment of the agent.” (Id. at 6.) In addition, Arnon contends that the parties reached an agreement on material terms, that Mr. Sofer never agreed to a four day deadline and, alternatively, that any such deadline was waived. (Id. at 11-18.)DiscussionThe standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment.” (CPLR 3212 [b]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].) “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) Once such proof has been offered, to defeat summary judgment “the opposing party must ‘show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd. [b]).” (Zuckerman, 49 NY2d at 562.) “On a motion for summary judgment, facts must be viewed in *6 the light most favorable to the non-moving party.” (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted].) “[I]ssue-finding, rather than issue-determination, is key. Issues of credibility in particular are to be resolved at trial, not by summary judgment.” (Shapiro v. Boulevard Hous, Corp., 70 AD3d 474, 475 [1st Dept 2010], citing S.J. Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974] [other internal citations omitted].)It is further settled that “[a] principal-agent relationship may be established by evidence of the consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act, even where the agent is acting as a volunteer.” (Art Fin. Partners, LLC v. Christie’s Inc., 58 AD3d 469, 471 [1st Dept 2009] [internal quotation marks and citation omitted].) Agency may be based on actual or apparent authority of the agent to act on behalf of the principal. Actual authority, in turn, may be based on an express or direct grant of authority to the agent or may be implied based on the principal’s “manifestations which, though indirect, would support a reasonable inference of an intent to confer such authority.” (Greene v. Hellman, 51 NY2d 197, 204 [1980].) Implied actual authority must be based on a showing that the principal “performed verbal or other acts that gave [the agent] the reasonable impression that he had authority to enter into the [contract].” (Site Five Hous. Dev. Fund Corp. v. Estate of Bullock, 112 AD3d 479, 480 [1st Dept 2013].) Apparent authority must be based on “words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his own acts imbue himself with apparent authority.” (Hallock v. State of New York, 64 NY2d 224, 231 [1984].) “Moreover, a third party with whom the agent deals may rely on an appearance of authority only to the extent that such reliance is reasonable.” (Id.) *7 As the Court of Appeals has explained:“As with implied actual authority, apparent authority is dependent on verbal or other acts by a principal which reasonably give an appearance of authority to conduct the transaction, except that, in the case of implied actual authority, these must be brought home to the agent while, in the apparent authority situation, it is the third party who must be aware of them.”(Greene, 51 NY2d at 204.)BREACH OF CONTRACT CLAIMSMr. Sofer’s Authority to Bind Arnon to the ContractArnon and defendants agree that the issue of whether Mr. Sofer had authority to enter into a contract for the Kore on behalf of Arnon is one of law for the court. (Oral Argument Transcript at 8-9.)In claiming that Mr. Sofer lacked authority to enter into the contract, defendants cite extensive deposition testimony from both Mr. Sofer and Ms. de Carte in which they repeatedly confirmed that Mr. Sofer recommended purchases but that only Arnon had the authority to contract for the purchases.Specifically regarding the purchase of the Kore, Mr. Sofer testified: “Q. Who made the decision that Arnon would buy the Kore? A. The trustees. Q. What was your role in that decision? A. Recommending them to buy it.” (Sofer Dep. at 18:6-10.) This testimony was consistent with Mr. Sofer’s testimony about past purchases of antiquities, in which he repeatedly stated that he made recommendations to Ms. de Carte, but that Arnon or the Arnon directors did the buying.6 *8 Mr. Sofer was also asked several general questions about his authority and testified consistently as follows: “Q. Can you tell the trustees what to do? A. No. Q. Is it correct to say that the only thing you can do with respect to these trusts is put things in them? A. I can recommend or express my wish. Q. Do the trustees listen? A. Sometimes.” (Sofer Dep. at 13:20-14:3.) In an affidavit, Mr. Sofer similarly stated: “I provide the assets that the Trust uses to acquire artwork through Arnon, but the trustees who oversee Arnon are independent.” (Sofer Aff., dated Feb. 4, 2013,5 [2/4/13 Sofer Aff.] [Bergman Aff., Exh. L.) He also averred that "Arnon is owned by a trust of which my family and I are beneficiaries. Arnon has independent directors who act in their discretion. But, because my recommended acquisition of antiquities reflects my tastes and interests, they have never refused to purchase any items I have recommended." (7/29/15 Sofer Aff.2.) *9 Ms. de Carte's testimony supports Mr. Sofer's testimony that he recommended but could not direct purchases. She testified that her position at Arnon as director "entails entering into agreements, [and] writing up Minutes, making payments, general administration.” (de Carte Dep. at 15:22-16:4). She also testified that she signs contracts on behalf of Arnon (id. at 17:17) and, with respect to the terms, is “guided by David Sofer” (id. at 16:12) or “take[s] some guidance from David Sofer from time to time.” (id. at 17:5-6.) She insisted, however, that she “would never just sign something if something’s placed in front of me…I would always read it and apply my mind to it.” (Id. at 18:1-3.)Ms. de Carte acknowledged that her position as trust and company administrator at Trident (the trustee of Arnon Trust and the secretary of Arnon), is “clerical” in nature (id. at 11:24-12:4, 15:19-16:4, 19:22-24); that Mr. Sofer, not she, has the expertise in antiquities (id. at 37:7-9); and that he would advise Arnon regarding which antiquities to acquire. (id. at 36:20-23.) Like Mr. Sofer, Ms. de Carte testified that she could not recall an instance when Arnon had turned down one of Mr. Sofer’s recommendations. (Id. at 36:24-37:2.) She denied, however, that Mr. Sofer had the power to contract on behalf of Arnon (id. at 56:14-16), and further explained that for a payment for a purchase to be authorized, the request must first be checked by “Compliance” and must then be approved by two of ten authorized signatories and, if the purchase is over £50,000, by the compliance manager. (Id. at 31:18-32:21.) When explicitly asked by defendants’ counsel whether the signatories’ decision to sign or not was “discretionary with these ten people,” she initially nodded in agreement. To the follow-up question “So nobody can instruct them to sign?,” she responded “Correct.” To the further question “All right. So the answer is, yes, it’s within their discretion, they do hold fiduciary positions and they have to act responsibly,” she answered “Correct.” (Id. at 35:24-36:19.) *10 As to the purchase of the Kore in particular, Ms. de Carte was asked the following question: “But there hadn’t been, if I understand your testimony correctly,…any decision on the part of Arnon to actually acquire this piece?” (Id. at 57:3-5.) She responded: “Arnon would have acquired the piece had we had an invoice and documents to back it up. We knew that the intention was there to buy it.” (Id. at 57:7-9.) She then gave the following testimony: “Q. But was there a contract to buy it? Did Arnon agree that it was going to pay this money?” “A. I didn’t see a contract….The answer is no, I didn’t see a contract.” (id. at 57:11-12, 58:1-7.)7In claiming that Mr. Sofer was authorized to enter into the contract for the Kore on Arnon’s behalf, Arnon does not dispute this testimony. Nor does Arnon contend that express authority to acquire the Kore was conferred by Arnon upon Mr. Sofer. Rather, as noted above, Arnon argues that “in this one instance, Sofer had authority to bind Arnon.” (Pl.’s Memo. In Opp. at 5.) In support of this contention, Arnon relies on the January 12, 2013 email and on prior dealings between the parties.The January 12 email (Bergman Aff., Exh. AA, quoted supra at 4) from Mr. Sofer to Ms. Beierwaltes was copied to Mr. Hicham Aboutaam and Ms. de Carte at [email protected]. In this email, which responds to Ms. Beierwaltes’ prior email congratulating Mr. Sofer on buying the Kore, Mr. Sofer advises her that Arnon is part of his trust and is managed by independent directors, and that the sale should be made by Phoenix to Arnon. Arnon contends that Ms. de Carte’s “non-response” to the email “was sufficient to cloak Sofer with authority for this transaction.” (Pl.’s Memo. In Opp. at 6.) *11 In discussing the effect of Ms. de Carte’s silence in response to the email, Arnon does not distinguish between implied actual authority and apparent authority, and does not cite legal authority on the effect of such silence on these separate bases for authority. There is case law that silence may, under appropriate circumstances, manifest authority, although New York law on this issue does not appear to be extensive. (See Restatement [Third] of Agency §1.03, Comment b [2006] [stating that a manifestation of the principal's assent to the agent may create implied actual or apparent authority, and that "[s]ilence may constitute a manifestation when, in light of all the circumstances, a reasonable person would express dissent to the inference that other persons will draw from silence. Failure then to express dissent will be taken as a manifestation of affirmance”]; see also Hillair Capital Invs., LP v. Smith Sys. Transp., Inc., 640 Fed Appx 49, 52 [2d Cir 2016] [citing New York law on creation of apparent authority].)Here, however, the silence of Ms. de Carte in response to the January 12 email is insufficient as a matter of law to manifest either implied actual or apparent authority. Ms. de Carte is neither directly addressed in the email, nor identified as a representative of Arnon. The email address used for Ms. de Carte is a Trident, not Arnon, address, and there is no indication in the email that Trident and Arnon are interrelated entities. As defendants correctly point out, “there is nothing on the face of the email to connect Ms. de Carte with Arnon.” (Defs.’ Reply Memo. at 4.) Further, the email does not detail the terms of the sale of the Kore, and it affirmatively states that Arnon is part of Mr. Sofer’s trust and is managed by independent directors. Ms. de Carte’s failure to respond, within a very short time frame, to such an email could not have led a reasonable person in defendants’ position to conclude that Ms. de Carte, and *12 through her, Arnon, bestowed on Mr. Sofer the authority to bind Arnon to a $650,000 contract.8 Ms. de Carte’s silence in response to the January 12 email thus fails to raise a triable issue of fact as to apparent authority.Ms. de Carte’s silence in response to this email similarly fails to raise a triable issue of fact as to Arnon’s claim that Arnon bestowed implied actual authority on Mr. Sofer for the one Kore transaction. As discussed at length above (supra at 7-10), Mr. Sofer and Ms. de Carte repeatedly testified that Mr. Sofer recommended purchases but that only Arnon had the power to contract for them, and that formal approval was required. In the face of this testimony. Ms. de Carte’s non-response to the January 12 email could not have given Mr. Sofer “the reasonable impression” that he had authority to enter into this one contract. (See Site Five Hous. Dev. Fund Corp., 112 AD3d at 480.)9 At most, Ms. de Carte’s silence could be interpreted as manifesting *13 agreement that Mr. Sofer was authorized to engage in intermediary discussions or negotiations, but that the independent directors referred to in the January 12, 2013 email must still make the final decision as to whether to bind Arnon to the purchase and must approve a formal written contract.10Arnon’s reliance on prior dealings is also insufficient to raise a triable issue of fact as to Mr. Sofer’s apparent authority to bind Arnon to the one Kore transaction. As a general rule, “[t]he mere creation of an agency for some purpose does not automatically invest the agent with ‘apparent authority’ to bind the principal without limitation. An agent’s power to bind his principal is coextensive with the principal’s grant of authority.” (Ford v. Unity Hosp., 32 NY2d 464, 472 [1973] [internal citations omitted].) Further, “the existence of ‘apparent authority’ depends upon a factual showing that the third party relied upon the misrepresentations of the agent because of some misleading conduct on the part of the principal — not the agent.” (Id. at 473; accord Hallock, 64 NY2d at 231.)Arnon asserts that defendants “knew from previous experience that Sofer conducted business through Arnon.” (Pl.’s Memo. in Opp. at 7.) This vague assertion is not supported by any evidence that Arnon at any time made a representation or otherwise engaged in misleading conduct that gave any of the defendants the impression that Mr. Sofer had the authority not merely to negotiate transactions but also to bind Arnon to purchases.11 *14 To the extent that Arnon further contends that defendants are bound because they failed to ask Mr. Sofer or Arnon for confirmation that Arnon had formally approved the contract for the Kore (see Pl.’s Memo. In Opp. at 7), this contention is unavailing. Arnon cites no authority that a defendant has an obligation to “make the necessary effort to discover the actual scope of [the agent's] authority” absent a factual showing — which is lacking here — “that the third party relied upon the misrepresentations of the agent because of some misleading conduct on the part of the principal….” (See Ford, 32 NY2d at 472-473.)Nor does Arnon cite prior dealings with Mr. Sofer sufficient to raise a triable issue of fact as to whether he had implied actual authority to bind Arnon to the purchase of the Kore. There is legal authority that prior dealings between a principal and an agent may be relied upon to establish an agent’s authority to perform similar acts in the future. (See e.g. Restatement [Third] of Agency §1.03, Comment e [2006] ["Between particular persons, prior dealings or an ongoing relationship frame the context in which manifestations are made and understood"]; Restatement [Second] of Agency §43 [2] [1958] ["Acquiescence by the principal in a series of acts by the agent indicates authorization to perform similar acts in the future"]; Beattie v. Delaware, Lackawanna, & W.R.R. Co., 45 Sickels 643, 90 NY 643 [1882] [Agency "might be established by circumstances, and among others the recognition by the defendant [principal] of acts on his [the agent's] part similar in character to those in controversy”]; Skutt v. Goodwin, 251 AD 84 [4th Dept 1937] ["[W]here an agency is sought to be established by a prior course of dealing, such conduct determines the extent of the agency as well as its existence”].)In claiming implied actual authority based on prior dealings, Arnon relies merely on the *15 following conclusory assertion: “It is clear that Sofer acted for and bound Arnon in connection with numerous loan agreements to museums he entered into for antiquities owned by Arnon. Sofer also committed to purchases at auctions he attended.” (Pl.’s Memo. In Opp. at 6 [internal citations omitted].) Arnon makes no factual showing as to the process by which Mr. Sofer was authorized to make contracts for loans to museums or to bid at auctions. Nor does Arnon make any showing that Mr. Sofer’s acts in connection with either the museum loans or the auctions were comparable in any respect to entry into contracts with third parties for purchases. These acts therefore fail to support Arnon’s claim of implied actual authority.12In sum, the court finds on this record that Arnon fails to demonstrate that, or to raise a triable issue of fact as to whether, Mr. Sofer had apparent or implied actual authority to purchase the Kore on Arnon’s behalf.13 At most, the evidence supports a finding that Arnon bestowed on Mr. Sofer authority to recommend artworks to Arnon, but not to bind Arnon to the purchases.In so holding, the court notes the testimony of both Mr. Sofer and Ms. de Carte that there was no occasion on which Mr. Sofer recommended a purchase that Arnon declined to approve. The court also notes that Arnon would likely have approved his recommendation on this occasion as well, as indicated by Ms. de Carte’s testimony that “Arnon would have acquired the piece had we had an invoice and documents to back it up. We knew that the intention was there to buy it.” (de Carte Dep. at 57:7-9.) The court, however, rejects Arnon’s contention that this evidence demonstrates Arnon’s intention to authorize Mr. Sofer to contract for the Kore on *16 Arnon’s behalf Relying on this evidence and the general precept that it is the court’s role in interpreting a contract to ascertain the parties’ intentions at the time of contracting, Arnon concludes: “That Sofer had authority for Arnon in this situation is consistent with the intentions of the parties.” (Pl.’s Memo. In Opp. at 7, quoting AQ Asset Mgt LLC v. Levine, 111 AD3d 245, 256 [1st Dept 2013]; Pl’s Memo. In Opp. at 4-5, quoting Brown Bros. Elec. Contrs., Inc. v. Beam Constr. Corp., 41 NY2d 397, 399] [1977].)Arnon’s argument ignores the overwhelming testimony of Mr. Sofer and Ms. de Carte that only Arnon had authority to enter into a contract for purchases of antiquities (even if Arnon may have effectively acted as a rubber stamp for Mr. Sofer’s recommendations). Significantly, neither Mr. Sofer nor Ms. de Carte ever testified that Mr. Sofer was authorized, or that they even believed him to be authorized, to contract on Arnon’s behalf in this situation involving the Kore. Arnon’s self-serving declaration in its brief that it was Arnon’s intention to bestow authority on Mr. Sofer’s authority for this one transaction cannot excuse Arnon from demonstrating that, under the doctrines of apparent and implied actual authority. Arnon manifested assent to Mr. Sofer’s authority to enter into the contract for this transaction at the time it was made.Finally, this court notes that evidence in the record suggests that defendants may have cancelled the contract due to the potential for a more desirable offer of $750,000 from another buyer during the time plaintiff was making arrangements to pay the $650,000 that Mr. Sofer had offered. (See Gette Aff. In Opp.20 [stating that on January 20, 2013 Baron Thyssen was shown the Kore and agreed to recommend purchase for his daughter's trust for $750,000].) The court cannot ignore, however, that Mr. Sofer created a trust under which he was required to obtain Arnon’s approval of contracts for purchases in order to avail himself of the benefits (undiscussed on these motions) of the trust structure, and that he failed to do so before *17 defendants cancelled the contract for the Kore.RatificationIn moving for summary judgment, defendants also contend that Arnon did not ratify the alleged contract for the Kore. (Defs.’ Memo. In Supp. at 4.) Arnon does not expressly address ratification in its papers, instead resting on its claim that Mr. Sofer had the authority to act for it. (See Pl.’s Memo. In Opp. at 4-7.) In any event, Arnon does not submit evidence on this motion that would be sufficient to raise a triable issue of fact as to whether Arnon ratified the contract made by Mr. Sofer.It has long been held that “[o]ne may ratify the acts of another purporting to be made on his behalf whether that other is an agent exceeding his authority or no agent at all.” (Ramsay v. Miller, 202 NY 72, 75-76 [1911].) Ratification may be made “by affirmative acts, and even by silence.” (Id. at 76; see generally Matter of Cologne Life Reins. Co v. Zurich Reinsur. (N. Am.) Inc., 286 AD2d 118, 126-128 [1st Dept 1991].)14There is authority that ratification will be effected by the principal’s prolonged failure to object to the allegedly unauthorized act of an agent. (See e.g., Clark v. Bristol-Myers Squibb & Co., 306 AD2d 82, 85 [1st Dept 2003] [holding that "plaintiff implicitly ratified the settlement by making no formal objection for months after she was told about it"]; 1420 Concourse Corp. v. Cruz., 175 AD2d 747 [1st Dept 1991] [holding that "silence and acquiescence constituted a ratification" of a stipulation of settlement, where the party did not claim, until years after the *18 stipulation had been entered into, that its attorney and employee/agent did not have authority to sign the stipulation].) Here, however, only two weeks elapsed between Mr. Sofer’s January 12 email and Mr. Aboutaam’s January 25 email cancelling the sale.15Further, as held by the Court of Appeals, “ratification of an agent’s acts requires knowledge of material facts concerning the allegedly binding transaction.” (Matter of N.Y. State Med. Transporters Assn., Inc. v. Perales, 77 NY2d 126, 131 [1990].) The January 12, 2013 email does not outline any details of the alleged agreement but, rather, explicitly anticipates a future document that would contain “the logistics of the sale (formal short agreement, invoice with photos etc.),” (Bergman Aff., Exh. AA.) Knowledge of the material terms of the alleged agreement therefore cannot be imputed to Arnon based on this email.More important, any claim of ratification based on Ms. de Carte’s silence in response to the January 12 email would be plainly inconsistent with Ms. de Carte’s repeated testimony (discussed supra at 8-10), that Arnon required compliance with a formal process in order to approve the contract.Arnon also cannot be found to have ratified the contract based on the filing of this lawsuit. The complaint was filed on February 4, 2013, but defendants had cancelled the sale ten days earlier on January 25, 2013. (Bergman Aff., Exh. Z.) A third party may withdraw from an agreement before ratification takes place. (See Restatement [Third] of Agency §4.05 ["A ratification of a transaction is not effective unless it precedes the occurrence of circumstances that would cause the ratification to have adverse and inequitable effects on the rights of third *19 parties" including "any manifestation of intention to withdraw from the transaction made by the third party"]; Id. at Comment c ["[A] third party [can] withdraw from a transaction when the third party is not bound because the agent acted without actual or apparent authority, so long as the third party manifests an intention to withdraw prior to the principal’s ratification”]; 12 Richard A. Lord, Williston on Contracts §35:28 [4th ed 1990, rev 2017] ["[I]t is generally held that withdrawal at any time prior to the ratification is effectual”].)Arnon’s Claim to Third Party Beneficiary Status and Motion for Leave to AmendIn the alternative, plaintiff argues that “[i]f Arnon did not have a contract, Sofer did,” and that Arnon has rights as a third party beneficiary of Mr. Sofer’s contract. (Pl.’s Memo. In Opp. at 8.) Arnon seeks leave to amend the complaint to assert its breach of contract and other claims on behalf of “Arnon and/or Sofer.” (Id. at 8-9; Proposed Am. Compl. [Gette Aff., Exh. B].)A party asserting rights as a third party beneficiary must first show that a valid and binding contract existed between other parties, in this case between defendants and Mr. Sofer. (See State of Cal. Pub. Empls.’ Retirement Sys. v. Shearman & Sterling, 95 NY2d 427, 434-435 [2000].) Before Arnon’s third party beneficiary claim can be considered, the court must accordingly determine whether Arnon should be granted leave to amend the complaint to plead that Mr. Sofer contracted for the Kore.It is well settled that the decision whether to permit amendment of pleadings is committed to the discretion of the court. (Edenwald Contr. Co. v. City of New York, 60 NY2d 957, 959 [1983].) In general, leave to amend a pleading should be freely granted absent prejudice or surprise resulting from the delay. (CPLR 3025 [b]; Thomas Crimmins Contr. Co. Inc. v. City of New York, 74 NY2d 166, 170 [1989].) Leave to amend should, however, be denied if the amendment is plainly lacking in merit. (Id. at 170; Herrick v. Second Cuthouse, *20 Ltd., 64 NY2d 692, 693 [1984].) It is the movant’s burden to “show that the proffered amendment is not palpably insufficient or clearly devoid of merit.” (See MBIA Ins. Corp. v. Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]; accord Caso v. Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, 150 AD3d 422, 423 [1st Dept 2017].)As held above in connection with Arnon’s breach of contract claim, Mr. Sofer’s and Ms. de Carte’s deposition testimony and the documentary evidence clearly show that Mr. Sofer’s role in the transaction was that of purchasing advisor; that he merely recommended that Arnon purchase the Kore; and that Arnon was the entity that was required to contract for the purchase. The claim that Mr. Sofer contracted to buy the Kore is plainly inconsistent with, and refuted by, the deposition testimony and documentary evidence. Plaintiff’s motion to amend the complaint will accordingly be denied as palpably without merit. As plaintiff cannot show that a contract existed between defendants and Mr. Sofer, plaintiff’s third party beneficiary claim must also fail.Relief Awarded on the Breach of Contract Claims as to the KoreIn conclusion, the court holds that plaintiff fails to demonstrate any basis for its claim that it had an enforceable contract for the Kore.16 Plaintiff’s claims based on the alleged contract for the Kore are set forth in its first cause of action for breach of contract (Compl.
30-35), its second cause of action for replevin (id.
