1455 WASHINGTON AVENUE ASSOCIATES v. Rose and Kiernan, Inc.

• Decision Date: 08 April 1999
• Citation: 687 N.Y.S.2d 791,260 A.D.2d 770
• Parties: 1455 WASHINGTON AVENUE ASSOCIATES, Appellant,<BR>v.<BR>ROSE AND KIERNAN, INC., Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

260 A.D.2d 770

687 N.Y.S.2d 791

1455 WASHINGTON AVENUE ASSOCIATES, Appellant,

v.ROSE AND KIERNAN, INC., Respondent, et al., Defendant.

Decided April 8, 1999.

Mikoll, J. P., Mercure, Peters and Carpinello, JJ., concur.

Crew III, J.

In 1994 plaintiff, as seller, and defendant Rose and Kiernan, Inc. (hereinafter defendant), as buyer, entered into an agreement for the sale and purchase of certain real property located on Washington Avenue in the City of Albany. The parcel in question, which was vacant and unimproved, was adjacent to other property owned by plaintiff that was leased or used as a hotel. According to plaintiff, defendant purchased the parcel in question with the "understanding" that an office building would be constructed upon it.

The matter proceeded to a closing in May 1995, at which time an addendum to the purchase agreement and a road maintenance agreement were executed and delivered with the deed. Insofar as is relevant to this appeal, such documents obligated plaintiff to construct and maintain a road for suitable ingress and egress for vehicular and pedestrian traffic over plaintiff's adjacent parcel, thereby providing defendant with access for "the use and occupancy of [its] [l]ands, including, specifically, the office building to be constructed thereon".

Defendant thereafter allegedly entered into a contract with defendant Candlewood Hotel Company, Inc. for the construction of a hotel upon the subject parcel, prompting plaintiff to commence this action to enjoin the construction of a hotel at that location, asserting that such action would violate the terms of the purchase agreement entered into by plaintiff and defendant. Defendant subsequently moved to dismiss the complaint for failure to state a cause of action and Supreme Court granted the motion, finding that plaintiff failed to allege or demonstrate that defendant was contractually obligated to construct an office building (or to refrain from constructing another type of building) upon the parcel purchased from plaintiff. This appeal by plaintiff ensued.

We affirm. The rules governing our review of a motion to dismiss pursuant to CPLR 3211 (a) (7) are both simple and straightforward—we must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory (see, Sand v Chapin, 238 AD2d 862, 863). We need not, however, "accept as true legal conclusions or factual allegations that `are either inherently incredible or flatly contradicted by documentary evidence'" (Ferran v Belawa, 241 AD2d 841, 843, quoting Quail Ridge Assocs. v Chemical Bank, 162 AD2d 917, 918, lv dismissed 76 NY2d 936; see, Doria v Masucci, 230 AD2d 764, 765, lv denied 89 NY2d 811).

Applying these principles to the matter before us, we conclude that defendant's motion to dismiss was properly granted. As a general rule, "prior negotiations and agreements regarding the sale of land merge into and are extinguished...