2626 Bway Llc v. Broadway Metro Associates

• Decision Date: 07 June 2011
• Citation: 925 N.Y.S.2d 437,85 A.D.3d 456,2011 N.Y. Slip Op. 04759
• Parties: 2626 BWAY LLC, Plaintiff–Appellant,v.BROADWAY METRO ASSOCIATES, LP, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 456

925 N.Y.S.2d 437

2011 N.Y. Slip Op. 04759

2626 BWAY LLC, Plaintiff–Appellant,

v.BROADWAY METRO ASSOCIATES, LP, et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

June 7, 2011.

Claude Castro & Associates, PLLC, New York (Claude Castro of counsel), for appellant.Reavis Parent Lehrer LLP, New York (Lawrence Brocchini of counsel), for respondents.MAZZARELLI, J.P., SWEENY, MOSKOWITZ, RENWICK, ROMÁN, JJ.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about January 22, 2010, which granted defendants' motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff purchaser alleges that defendant seller Broadway Metro Associates, LP anticipatorily breached the contract for the purchase of real property by, inter alia, its inability to convey title with certain development rights purportedly provided to the seller in a recorded Zoning Lot Development Agreement (ZLDA) made between the seller and an adjoining property owner. However, neither the contract of sale nor the ZLDA provide for the development rights claimed by plaintiff to exist. These agreements are unambiguous and must be enforced as written ( see W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 [1990] ).

The ZLDA and an agreement entered into between the seller and the adjoining property owner specifically conveyed to the adjoining property owner a light and air easement beginning 15 ' above the parapet wall of the roof of the subject premises. However, the fact that the area covered by the easement does not begin until 15' above the parapet wall does not provide the seller with the right to add to the premises up to that point or create any obligation on the part of the adjoining property owner to protect such right. The ZLDA's only protection of a right to build on the roof is the retention of Broadway Metro's right to use that area “for mechanical equipment ... or any other devices.” Under the rule of construction inclusiounius est exclusio alterius, the expression of a specific guarantee of use implies the exclusion of any other guarantee of use ( see Two Guys from Harrison–N.Y. v. S.F.R. Realty Assoc., 63 N.Y.2d 396, 404, 482 N.Y.S.2d 465, 472 N.E.2d 315 [1984]; Matter of New York City Asbestos Litig., 41 A.D.3d 299, 302, 838 N.Y.S.2d 76 [2007] ).

Since the contract of sale was specifically made “SUBJECT TO” the ZLDA and included the ZLDA as...