Burgdorf v. Kasper

• Decision Date: 29 April 2011
• Citation: Burgdorf v. Kasper, 83 A.D.3d 1553, 921 N.Y.S.2d 769, 2011 N.Y. Slip Op. 3434 (N.Y. App. Div. 2011)
• Parties: Joseph D. BURGDORF, Plaintiff–Appellant–Respondent,v.Kenneth G. KASPER, 1660 Grand Island Boulevard, Inc., Bridal Veil Tours, Inc., Phyllis I. Kasper, Doing Business as Algiers Motel, Defendants–Respondents–Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1553

921 N.Y.S.2d 769

2011 N.Y. Slip Op. 03434

Joseph D. BURGDORF, Plaintiff–Appellant–Respondent,

v.Kenneth G. KASPER, 1660 Grand Island Boulevard, Inc., Bridal Veil Tours, Inc., Phyllis I. Kasper, Doing Business as Algiers Motel, Defendants–Respondents–Appellants, et al., Defendants.

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

April 29, 2011.

The Wolford Law Firm LLP, Rochester (David C. Pilato of Counsel), for Plaintiff–Appellant–Respondent.Mark R. Uba, Williamsville (Christine D. Uba of Counsel), for Defendants–Respondents–Appellants.PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GORSKI, AND MARTOCHE, JJ.MEMORANDUM:

Plaintiff commenced this action for, inter alia, breach of a settlement agreement and a consulting agreement (collectively, agreements) between plaintiff and defendant Kenneth G. Kasper. Plaintiff moved for, inter alia, partial summary judgment seeking declarations that defendants owed him $420,000 in installment payments pursuant to the consulting agreement, 7.5% of gross revenue of “[d]efendants and any other person or business entity with whom ... Kenneth G. Kasper is connected, directly or indirectly, doing business at [the premises in question],” excluding commissions on hotel referrals, and 50% of the hotel referral commissions paid to “[d]efendants and any other person or business entity with whom ... Kenneth G. Kasper is connected, directly or indirectly, doing business at the [p]remises ..., regardless of whether [Kenneth] Kasper actually received such revenue.” Plaintiff also sought a declaration that Kenneth Kasper is connected “ ‘directly or indirectly,’ within the meaning of the terms of the [c]onsulting [a]greement, with at least two business entities that have done business, or are doing business, at the [p]remises....” Defendants cross-moved for partial summary judgment seeking a declaration that the agreements do not require defendants to pay plaintiff a portion of the revenues of unrelated businesses on the premises that are not owned or operated by Kenneth Kasper and seeking a stay of the action pursuant to CPLR 2201 pending the resolution of a federal criminal proceeding against Kenneth Kasper. Plaintiff appeals and defendants cross-appeal from an order that, inter alia, denied those parts of the motion and cross motion for partial summary judgment and granted that part of the cross motion seeking a stay.

We note at the outset that, although the parties sought declaratory relief in the motion and cross motion, there is no need to grant declaratory relief where the issues concern the merits of the breach of contract causes of action ( see generally James v. Alderton Dock Yards, 256 N.Y. 298, 305, 176 N.E. 401, rearg. denied 256 N.Y. 681, 177 N.E. 191; Harris v. Town of Mendon, 284 A.D.2d 988, 726 N.Y.S.2d 883). Contrary to plaintiff's contention on appeal, Supreme Court properly denied those parts of his motion for partial summary judgment with respect to defendants' liability for percentages of the gross revenue and hotel referral payments from business entities that are not operated by Kenneth Kasper ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). “It is ‘elementary’ that ‘clauses of a contract should be read together contextually in order to give them meaning’ ” ( Diamond Castle Partners IV PRC, L.P. v. IAC/InteractiveCorp, 82 A.D.3d 421, 422, 918 N.Y.S.2d 73 [Mar. 3, 2011] ). Read together, we conclude that the agreements provide that plaintiff is entitled to a percentage of the gross revenues produced by businesses “operated by [Kenneth] Kasper” on the premises. Although the consulting agreement provides plaintiff with a percentage of gross revenues of, inter alia, business entities “with [which Kenneth] Kasper is connected, directly or indirectly,” that phrase is defined by the settlement agreement as businesses that are “operated by [Kenneth] Kasper.” “[I]t is a cardinal rule of construction that a court adopt an interpretation that renders no portion of the contract meaningless” ( Diamond Castle Partners IV PRC, L.P., 82 A.D.3d at 422, 918 N.Y.S.2d 73 [internal quotation marks omitted]; see Green Harbour Homeowners' Assn., Inc. v. G.H. Dev. & Constr., Inc., 14 A.D.3d 963, 965, 789 N.Y.S.2d 319). Moreover, “where two seemingly conflicting contract provisions reasonably can be reconciled, a court is required to do so and to give both effect” ( HSBC Bank USA v. National Equity Corp., 279 A.D.2d 251, 253, 719 N.Y.S.2d 20 [internal quotation marks omitted] ). To define the agreements in the manner suggested by plaintiff would render that portion of the settlement agreement regarding businesses “operated by [Kenneth] Kasper” meaningless ( see Diamond Castle Partners IV PRC, L.P., 82 AD3d at 422, 918 N.Y.S.2d 73). For the same reasons, we conclude that the court properly denied that part of plaintiff's motion seeking an accounting to permit plaintiff to calculate the amounts allegedly owed to him pursuant to the consulting agreement ( see id.).

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