150 Broadway Assoc., L.P. v. Bodner

• Decision Date: 04 November 2004
• Docket Number: 3399.
• Citation: 150 Broadway Assoc., L.P. v. Bodner, 14 A.D.3d 1, 784 N.Y.S.2d 63, 2004 NY Slip Op 7952 (N.Y. App. Div. 2004)
• Parties: 150 BROADWAY N.Y. ASSOCIATES, L.P., Respondent, v MARK L. BODNER et al., Appellants.
• Court: New York Supreme Court — Appellate Division

14 A.D.3d 1

784 N.Y.S.2d 63

2004 NY Slip Op 07952

150 BROADWAY N.Y. ASSOCIATES, L.P., Respondent, v MARK L. BODNER et al., Appellants.

3399.

Appellate Division of the Supreme Court of the State of New York, First Department.

November 4, 2004.

Appeal from an order of the Supreme Court, New York County (Saralee Evans, J.), entered January 5, 2004. The order, insofar as appealed from, denied defendants' motion to dismiss the verified complaint.

Fischbein Badillo Wagner Harding, New York City (Menachem J. Kastner, Jeffrey A. Mitchell and Maureen Bezuhly of counsel), for appellants.

Avrom R. Vann, New York City, for respondent.

OPINION OF THE COURT

FRIEDMAN, J.

Defendants Mark L. Bodner and Jesse S. Waldinger are the sole shareholders, directors and officers of a professional corporation named "Bodner & Waldinger, P.C.," which, without dispute, has been in existence at all relevant times. In September 2000, plaintiff landlord (150 Broadway) entered into an office lease signed by Bodner and Waldinger. The lease designates the tenant as "Bodner & Waldinger," without use of the abbreviation "P.C." The signature page of the lease does not indicate whether Bodner and Waldinger signed it in their individual capacities or, alternatively, on behalf of the professional corporation. The lease has a rider, however, which contains two sections —section 23 ("Corporate Tenant's Representations") and section 39 (a so-called "Good Guy Guaranty" of certain of the tenant's obligations by "the individual[s] executing this lease rider") — that would have meaning only if the professional corporation were the tenant. In pertinent part, sections 23 and 39 of the rider provide as follows:

"Rider Section 23. Corporate Tenant's Representations.

"The persons executing this Lease on behalf of the Tenant hereby jointly and severally represent, warrant and covenant that the Tenant is a duly organized and validly existing corporation under the laws of the State of New York, that all of the Tenant's franchise and corporate taxes have been paid to date, that all future forms, reports, taxes, returns and other documents necessary for the Tenant to comply with all applicable laws will be filed by the Tenant when due, and that the persons executing this Lease on behalf of the Tenant are duly authorized to so do by the board of directors of the Tenant and are further authorized to deliver this Lease on behalf of the Tenant to the Owner."

"Rider Section 39. Good Guy Guaranty.

"In order to induce Owner to enter into this Lease and in consideration of Owner's entering into this Lease, the individual executing this lease rider at the foot hereof (hereinafter, collectively, referred to as `Guarantor') hereby guaranties, unconditionally and absolutely, to Owner, its successors and assigns . . . , the full and faithful keeping, performance and observance of all the covenants, agreements, terms, provisions and conditions of this lease provided to be kept, performed and observed by Tenant . . . . Guarantor's liability pursuant to this Article (hereinafter sometimes referred to as this `Guaranty') shall be limited to the performance of those obligations and the payment of such fixed annual rent, additional rent and other charges as accrue up to the date that Tenant vacates the demised premises and removes its property there from [sic], delivers the key to the Owner and gives written notice to Owner that it is surrendering possession of the premises . . . .

"As a further inducement to Owner to enter into this Lease and in consideration thereof, Guarantor represents and warrants that Guarantor is the owner and holder of all the capital stock of Tenant. . . .

"The undersigned Guarantor have [sic] executed this Lease for the purposes set forth in Rider Section hereof [sic]."

Immediately below the last sentence, the signatures of Bodner and Waldinger are again set forth.

For purposes of reporting interest on the security deposit for the leased premises, a Form W-9 was supplied to 150 Broadway that set forth the tax identification number of the professional corporation (identified on the form as "Bodner & Waldinger"). The Form W-9 was signed by Waldinger in his capacity as vice president of the professional corporation. The same taxpayer identification number that appeared on the Form W-9 was used for the tenant (identified as "Bodner & Waldinger") on a real estate tax abatement form signed by both parties that was filed with the New York City Department of Finance in May 2002. The security deposit and all rental payments under the lease were made by checks drawn on the professional corporation's bank account.

Although the lease provided that its term would end on October 31, 2005, it is undisputed that the leased premises were vacated and surrendered to 150 Broadway as of April 30, 2003, as stated in a surrender notice of that date executed on behalf of the professional corporation. It appears to be undisputed that 150 Broadway has been paid all amounts due under the lease through April 30, 2003.

In June 2003, 150 Broadway commenced this action against Bodner and Waldinger, in their individual capacities, seeking damages for the tenant's early surrender of the premises, allegedly in breach of the lease. The complaint does not assert any cause of action under the aforementioned "Good Guy Guaranty" set forth in section 39 of the lease rider (hereinafter, the Guaranty). In lieu of answering, Bodner and Waldinger moved to dismiss the complaint on the ground, among others, that, pursuant to CPLR 3211 (a) (1), documentary evidence established that no cause of action existed against them. Based on sections 23 and 39 of the lease rider, inter alia, defendants argued that the lease established that the tenant thereunder was the professional corporation. Although no claim under the Guaranty had been asserted, defendants also argued that they were not personally liable under the Guaranty for obligations of the tenant that accrued after the surrender of the premises on April 30, 2003, and that all amounts that had become due on or before that date had been paid. In further support of the motion, defendants submitted copies of the Form W-9 that had been supplied to 150 Broadway, of the security deposit check, and of all rent checks that had been tendered.

In opposition to the motion, 150 Broadway submitted the affidavit of Joseph L. Jerome, the president of the building's managing agent. Attached to Jerome's affidavit were various documents relating to the lease (including the aforementioned real estate tax abatement form) that, like the lease, referred to the tenant as "Bodner & Waldinger." Based on the lease's identification of the tenant as "Bodner & Waldinger," without use of the abbreviation "P.C.," and the signature page's failure to state expressly that Bodner and Waldinger were executing the instrument on behalf of the professional corporation, Jerome argued that "it is clear that the tenant under the Lease is not the Professional Corporation or that at a minimum factual issues exist based upon the documentation submitted by both sides. . . ."¹

In the order appealed from, the motion court found that the record presented "an issue of fact as to whether the parties intended to establish the corporation's tenancy," and therefore denied the motion to dismiss the action as against Bodner and Waldinger individually. We now reverse.

Dismissal of a complaint pursuant to CPLR 3211 (a) (1) is warranted where "the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]). In particular, where a written agreement (such as the lease in this case) unambiguously contradicts the allegations supporting a litigant's cause of action for breach of contract, the contract itself constitutes documentary evidence warranting the dismissal of the complaint pursuant to CPLR 3211 (a) (1), regardless of any extrinsic evidence or self-serving allegations offered by the proponent of the claim (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 69 [2003], lv dismissed 2 NY3d 794 [2004]). This follows from the bedrock principle that it is a court's task to enforce a clear and complete written agreement according to the plain meaning of its terms, without looking to extrinsic evidence to create ambiguities not present on the face of the document (see e.g. Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 N.Y.3d 470, 475 [2004]; Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 32, 33 [2002]; Reiss v Financial Performance Corp., 97 NY2d 195, 198, 199 [2001]). This rule has "special import `in the context of real property transactions, where commercial certainty is a paramount concern, and where . . . the instrument was negotiated between sophisticated, counseled business people negotiating at arm's length'" (Vermont Teddy Bear Co. v 538 Madison Realty Co., supra at 475, quoting Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995]).

In this case, the terms of the subject lease establish, as a matter of law, that the tenant thereunder was the professional corporation formed by Bodner and Waldinger, not Bodner and Waldinger individually. It is a cardinal rule of contract construction that a court should "avoid an interpretation that would leave contractual clauses meaningless" (Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396, 403 [1984]). Stated otherwise, "[c]ourts `are obliged to interpret a contract so as to give meaning to all of its terms'" (Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., supra at 69, quoting Mionis v Bank Julius Baer & Co., 301 AD2d 104, 109 [2002]).² To construe the lease before us as an agreement between 150 Broadway and the individual defendants would violate this rule by depriving the lease rider's section 23 ("Corporate Tenant's Representations") and section 39 (the Guaranty) of...