Catlyn & Derzee, Inc. v. Amedore Land Developers, LLC

• Decision Date: 29 October 2015
• Citation: 132 A.D.3d 1202,19 N.Y.S.3d 348,2015 N.Y. Slip Op. 07890
• Parties: CATLYN & DERZEE, INC., Appellant, v. AMEDORE LAND DEVELOPERS, LLC, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 1202

19 N.Y.S.3d 348

2015 N.Y. Slip Op. 07890

CATLYN & DERZEE, INC., Appellant,

v.AMEDORE LAND DEVELOPERS, LLC, et al., Respondents.

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

Oct. 29, 2015.

Lemery Greisler, LLC, Albany (Paul A. Levineof counsel), for appellant.

O'Connell & Aronowitz, PC, Albany (Paul A. Feigenbaumof counsel), for respondents.

Opinion

PETERS, P.J.

Appeal from an order of the Supreme Court (McNamara, J.), entered March 31, 2014 in Albany County, which, among other things, denied plaintiff's motion for partial summary judgment.

In February 2008, defendant Amedore Land Developers, LLC entered into a contract with plaintiff for the purchase of an approximately 21–acre parcel of undeveloped real property located in the Town of North Greenbush, Rensselaer County.¹Such parcel had been rezoned as a planned development district by Local Law No. 8 (2007) of the Town of North Greenbush, which permitted the development of 180 multi-family residential units to be situated within 20 buildings. Paragraph 2 of the contract provided that “[t]he purchase price is $15,000 per multi-family unit approved by the Town of North Greenbush and all necessary governmental agencies, ... with an anticipated purchase price of ... $2,700,000.” The contract further provided, in paragraph 13(A)(2), that certain costs incurred by Amedore in obtaining the remaining necessary governmental approvals for the development would be credited from the purchase price at closing, so long as the invoices for such costs were supplied to plaintiff at least five days prior to the payment of the invoice.

By February 2010, Amedore had succeeded in obtaining all the necessary approvals for the construction of the 180 residential units authorized by Local Law No. 8. On May 25, 2010, the parties executed an amendment to the contract which, among other things, altered the provisions regarding the purchase price and credit for costs incurred in obtaining governmental approvals.²As relevant here, such amendment specifically provided that “[t]he purchase price referenced in [p]aragraph 2 [of the contract] shall be reduced to ... $2,520,000.00.” It also required that Amedore provide plaintiff with invoices to support a $210,000 credit against the purchase price pursuant to paragraph 13(A)(2) of the contract. The parties closed on the property that same day, with plaintiff tendering the deed for the premises in exchange for the gross sum of $2,310,000, representing the $2,520,000 purchase price less the $210,000 credit authorized by paragraph 13(A)(2).

Approximately two years later, defendants successfully applied to the Town Board of the Town of North Greenbush to amend Local Law No. 8 to increase the allowable number of multi-family residential units within the residential portion of the planned development district from 180 to 224. Plaintiff thereafter demanded compensation in the amount of $15,000 for each of the additional 44 units approved. When defendants refused, plaintiff commenced this action seeking, among other things, monetary damages for breach of contract and a declaration that it is no longer obligated to perform its remaining obligations under the contract as a result of defendants' breach. Defendants joined issue and counterclaimed for a judgment declaring that the contract has not been breached and setting forth plaintiff's continuing obligations thereunder.

Thereafter, plaintiff moved for summary judgment on its causes of action for breach of contract and declaratory judgment and sought dismissal of the counterclaim. Defendants opposed the motion and cross-moved for summary judgment on their counterclaim. Supreme Court, among other things, searched the record and granted defendants summary judgment dismissing the cause of action for breach of the purchase price provision, found that questions of fact existed as to whether defendants were contractually entitled to the credits claimed at closing, and declared that any breach of the contract's cost reimbursement provision is insufficient to relieve plaintiff of its obligations under the contract. Plaintiff appeals.

“The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent[, and t]he best evidence of what parties to a written agreement intend is what they say in their writing” (Greenfield v. Philles Records,98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 [2002][internal quotation marks and citations omitted]; see Ellington v. EMI Music, Inc.,24 N.Y.3d 239, 244–245, 997 N.Y.S.2d 339, 21 N.E.3d 1000 [2014]; Schron v. Troutman Sanders LLP,20 N.Y.3d 430, 436, 963 N.Y.S.2d 613, 986 N.E.2d 430 [2013]). As such, “ ‘a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms' ” (MHR Capital Partners LP v. Presstek, Inc.,12 N.Y.3d 640, 645, 884 N.Y.S.2d 211, 912 N.E.2d 43 [2009], quoting Greenfield v. Philles Records,98 N.Y.2d at 569, 750 N.Y.S.2d 565, 780 N.E.2d 166; see Vermont Teddy Bear Co. v. 538 Madison Realty Co.,1 N.Y.3d 470, 475, 775 N.Y.S.2d 765, 807 N.E.2d 876 [2004]). Further, we “may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing” (Bailey v. Fish & Neave,8 N.Y.3d 523, 528, 837 N.Y.S.2d 600, 868 N.E.2d 956 [2007][internal quotation marks and citations omitted]; accord Beardslee v. Inflection Energy, LLC,25 N.Y.3d 150, 157, 8 N.Y.S.3d 618, 31 N.E.3d 80 [2015]; see NML Capital v. Republic of Argentina,17 N.Y.3d 250, 259–260, 928 N.Y.S.2d 666, 952 N.E.2d 482 [2011]). Adherence to these principles is “particularly important 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” (South Rd. Assoc., LLC v. International Bus. Machs. Corp.,4 N.Y.3d 272, 277, 793 N.Y.S.2d 835, 826 N.E.2d 806 [2005][internal quotation marks and citations omitted]; accord Concord Assoc., L.P. v. EPT Concord, LLC,130 A.D.3d 1404, 1407–1408, 15 N.Y.S.3d 270 [2015]; 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]).

Guided by these precepts, we address plaintiff's contention that Supreme Court erred in dismissing its cause of action for breach of the purchase price provision of the contract. Plaintiff argues that the amendment simply changed the “anticipated purchase price” set forth in the contract while leaving intact the $15,000 per unit formula for determining the “purchase price,” such that defendants were obligated to compensate it for the 44 units that were subsequently approved by the Town years after the closing.³Such an interpretation, however, is not supported by the language of the amendment. The amendment makes no mention of the “anticipated purchase price”-a figure that was originally arrived at based upon the expectation that 180 units would ultimately be approved at the time of closing. Rather, the amendment expressly references the contract's “purchase price”-which is expressly defined in the contract as $15,000 per multi-family unit approved by the Town and all necessary governmental agencies-and specifies that such “purchase price” is being changed to $2,520,000. The amendment, therefore, plainly and unambiguously modified the purchase price of the property from a per-unit cost to a fixed price. Indeed, when consideration is given to the entire contract and “the circumstances under which [the amendment] was executed” (Currier, McCabe & Assoc., Inc. v. Maher,75 A.D.3d 889, 890–891, 906 N.Y.S.2d 129 [2010][internal quotation marks and citation omitted] ), it would be illogical to read the amendment as merely modifying the “anticipated purchase price,” since the amendment was executed on the day of the closing when the 180 units had, in fact, already been approved. Since the “ ‘only reasonable interpretation’ ” of the amendment is that the parties abandoned a per unit purchase price (id.at 892, 906 N.Y.S.2d 129, quoting B.T.R. E. Greenbush v. General Acc. Co.,206 A.D.2d 791, 792, 615 N.Y.S.2d 120 [1994], lv. denied

84 N.Y.2d 808, 621 N.Y.S.2d 517, 645 N.E.2d 1217 [1994]), Supreme Court...