Clifford v. Carrols New York Development Corp.

• Decision Date: 30 June 1966
• Citation: 271 N.Y.S.2d 465,50 Misc.2d 741
• Parties: Leon A. CLIFFORD and Donald A. Goodenow, Plaintiffs, v. CARROLS NEW YORK DEVELOPMENT CORP., Defendant.
• Court: New York Supreme Court

Page 465

271 N.Y.S.2d 465

50 Misc.2d 741

Leon A. CLIFFORD and Donald A. Goodenow, Plaintiffs, v. CARROLS NEW YORK DEVELOPMENT CORP., Defendant.

Supreme Court, Motion Term, Oneida County.

June 30, 1966.

[50 Misc.2d 742] Griffith & Pileckas, Rome, for plaintiffs.

Ferris, Kehoe, Tenney & Murnane, Utica, for defendant.

DECISION

DONALD H. MEAD, Justice.

Defendant herein moves, pursuant to § 3212 Civil Practice Law & Rules, 'for an order dismissing the plaintiffs' complaint and directing the entry of summary judgment in favor of the defendant and against the plaintiffs, on the ground there is no triable issue of fact presented in the said plaintiffs' complaint'. The motion was submitted to the Court on papers without oral argument.

While there are numerous disputed issues of fact the non-controversial facts are substantially as follows: On the 4th of June, 1963, the plaintiffs herein signed an instrument purporting to be a twenty year lease. In this instrument the plaintiffs are designated as landlord and the defendant is the tenant. The instrument provided:

'THE LANDLORD, in consideration of the rent herein reserved and the covenants and agreements herein expressed has leased and by these presents does lease, and the TENANT has hired and by these presents does hire, all that certain plot, piece or parcel of land situate, lying and being in the State of New York, County of Oneida City or Town of Rome and more particularly bounded and described as follows:

See attached plot plan.

said premises being described on the tax records as Section Block and Lot and also as shown on map attached to this lease; together with all appurtenances thereto and all rights, title and interest of the LANDLORD in and to all roads, streets, lanes, whether public or private, bounding said premises and to be occupied by the TENANT.

TO HAVE AND TO HOLD the said demised premises unto the TENANT, its successors and assigns, for and during the term of twenty (20) years, to commence on the 4th day of June 1963 and to end on the 3rd day of June, 1983, subject to the rents, terms and conditions herein contained; with the right and option to the TENANT to renew and extend this lease for an additional term of years, as herein provided; to be used and occupied for the processing, handling, dispensing, storage, selling and distributing of food in various forms, as well as office facilities and any other business in connection therewith or in addition thereto.'

The lease also provided in Covenant '2':

'LANDLORD agrees to construct at his sole cost and expense, a building In accordance with the general plans specifications and plot plan supplied by TENANT and approved by both LANDLORD and TENANT in writing, which plans, specifications and plot plan are made part of this lease. TENANT shall furnish the plot plan and all general drawings, plans and specifications including the number and location of all electrical and plumbing outlets, entrances, windows and other details of the said building to be constructed by the LANDLORD. The LANDLORD, at his own cost and expense, shall procure all necessary licenses, permits and certificates for the premises. The buildings shall be constructed by the LANDLORD in compliance with all building codes and municipal and state laws and regulations. Any corrections or changes in the general plans or specifications which may be required by any municipal or state authority shall be made by the LANDLORD at its own expense.' (Emphasis supplied.)

The stated rental for the premises was to be in the sum of $10,500.00 a year, or 6% Of the gross receipts after payment of all real estate taxes, whichever sum was larger. Pursuant to Covenant '5' of the lease, the obligation of rent was not to commence until the building was erected and the premises completed by the landlord in accordance with the plans, specifications and plot plan as set forth in the lease.

It is conceded by the parties that the plot plan was not attached to and made part of the lease nor were the plans and specifications of the proposed building attached thereto. Plaintiffs brought action for anticipatory breach of the contract seeking damages in the sum of $150,000.00. The complaint alleges 'that on or about the 14th day of June, after execution of the above contract, one Herbert N. Slotnick, President of defendant corporation, notified plaintiff, Leon A. Clifford, unequivocally that defendant corporation had no intention of carrying out its contract * * * and unequivocally repudiated same.' Attached to the complaint is a map of certain land bordering on Black River Boulevard. There appears on the map circled numerals '1' and '2'. The map contains a legend which indicates that numeral '1' refers to 'Leased property sole use of Carrols New York Development Corp.' and numeral '2' refers to 'Leased property to be used jointly with R.B.C. Inc. by Carrols New York Development Corp. during Sept. thru May each year. Exclusively Carrols during balance of year.'

Following service of this complaint the defendant moved, pursuant to Rule 3211(a) Civil Practice Law & Rules, for an order dismissing the cause of action on the grounds 'That the cause of action for breach of contract alleged in the complaint has no validity by reason of a condition precedent in the contract which said condition was not met by either party.' This motion was heard by the Honorable Carl W. Peterson, Justice of the Supreme Court, at a Special Term of said court in and for the County of Oneida on January 7, 1964, and the relief requested by the defendant denied by decision dated January 23, 1964. This decision stated:

'The ground on which dismissal is sought is that a 'plot plan' which should have been attached to the contract was not so attached and that after the contract was executed the defendant reviewed the 'plot plan', that is a surveyor's drawing of the location and dimensions of the lot on the ground, and that the 'plot plan' showed a frontage on the Black River Boulevard of only 59 feet which defendant claims was contrary to assurances given to Magley by the plaintiff Leon A. Clifford. Magley claims Clifford told him the frontage on the boulevard was 89 feet.

'The Res gestae of defendant's position here is that it was misinformed and mislead by the plaintiff and in reliance on the information given to its agents and employees by the plaintiffs it entered into a contract that would not have been acceptable to it had it known that the boulevard frontage was only 59 feet.

'But, the plaintiffs by affidavit deny that any representations were made to Magley or other officers or employees of defendant that the frontage was 89 feet.

'There is much argument in the affidavits submitted to support the positions of the adversaries, but from the above resume it is obvious that a triable issue of fact exists that may not be disposed of summarily on affidavits by motion.

'The case law is replete with citations to the effect that a dispute of facts relating to issues material to the litigation can only be decided on trial. This motion falls well within the mandate of the case law requiring trial.

'The Court is bound by precedent to deny the motion. Questions of fact are involved which preclude a decision of these issues as a matter of law.'

Affidavits similar to those usually associated with motions for summary judgment were submitted by both parties and while it is difficult to determine from the decision whether the Court treated the motion as one for summary judgment, it would appear from the decision that such was the case. Defendant appealed from the order of denial and the Appellate Division, Fourth Department, unanimously affirmed the order stating in its per curiam memorandum: 'In affirming we do not reach or pass upon any question which may arise if and when the Statute of Frauds is pleaded as an affirmative defense.' (24 A.D.2d 532, 261 N.Y.S.2d 869).

Defendant thereupon served an answer pleading, among other things, the affirmative defense of the Statute of Frauds and now brings on this motion for summary judgment (§ 3212 C.P.L.R.) on the grounds that the contract sought to be enforced is void pursuant to subdivision 2 of section 5--703 of the General Obligations Law. That section provides:

'A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing.'

It is the contention of the defendant that since the plot plan and the plans and specifications for the structure to be erected on the premises were not attached to the lease, the contract is void as a matter of law so as to preclude an action for anticipatory breach thereof. Further, that in the absence of any description of the leased premises in the contract resort may not be had to an unsigned writing or to parol evidence in order to supply the claimed efficiency.

In cases where a writing or memorandum relating to the sale or lease of real estate is attacked under the Statute of Frauds for insufficiency in respect to the identification of the subject-matter, the general rule is that while parol evidence may not be admitted as to the terms of the agreement, it nevertheless is receivable to show extrinsic circumstances relating to the situation of the parties in respect to the land, so as to enable the Court definitely to ascertain the property to which the contract referred. (Miller v. Tuck, 95 App.Div. 134, 135, 88 N.Y.S. 495, 496.) Thus, there are numerous authorities which hold that where real property is vaguely or inadequately described in the writing but nevertheless susceptible of ascertainment, parol evidence may be received in order to indicate the specific parcel intended to be conveyed. (Miller v. Tuck, supra; Crandall v. Smith, 172 Misc. 92, 15...