Demas v. 325 West End Ave. Corp.

• Decision Date: 10 February 1987
• Citation: 511 N.Y.S.2d 621,127 A.D.2d 476
• Parties: Carole M. DEMAS et al., Plaintiffs-Appellants, v. 325 WEST END AVENUE CORP., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 621

511 N.Y.S.2d 621

127 A.D.2d 476

Carole M. DEMAS et al., Plaintiffs-Appellants, v. 325 WEST END AVENUE CORP., Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Feb. 10, 1987.

R.J. Jossen, New York City, for plaintiffs-appellants.

N. Schwarzfeld, New York City, for defendant-respondent.

Before SULLIVAN, J.P., and CARRO, ASCH and WALLACH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Bruce McM. Wright, J.), entered January 7, 1986, and judgment entered thereon on January 14, 1986, which granted defendant's motion to dismiss the complaint, reversed, on the law, the judgment is vacated, and defendant's motion to dismiss is denied, without costs.

Plaintiff Demas is the owner of 550 shares allocated to a penthouse apartment PHW in the cooperative apartment building located at 325 West End Avenue, and the tenant under the appertaining proprietary lease. Her co-plaintiff husband, Allyn, resides in the apartment with her. Defendant is the cooperative corporation which owns and manages the building through its board of directors ("Board"). At the core of this action is plaintiffs' contention that the Board has arbitrarily and illegally frustrated their plans for expansion and renovation of their rooftop apartment causing them significant monetary damage.

In February, 1985, plaintiffs commenced this action setting forth six causes of action: (1) breach of a contractual commitment alleged to have arisen by reason of a resolution passed by the Board on February 16, 1984, granting plaintiffs the right to build a 400 foot addition to their apartment subject to certain stated conditions as to which there was no objection; (2) breach by defendant of the proprietary lease; (3) misrepresentations by defendant in 1972 to plaintiff Demas' predecessor in title, her parents, who thereafter conveyed the apartment to her by way of gift; (4) fraudulent misrepresentations in January 1983, by defendant, to plaintiff Demas herself; (5) breach by defendant of its duty to plaintiffs to act reasonably and in good faith; and (6) a claim sounding in estoppel.

In April, 1985, defendant moved to dismiss the complaint under CPLR 3211(a)1, 3, 5 and 7 and under CPLR 3013 and 3016. The main thrust of this motion, certainly with respect to the first two contractual causes of action and in part with respect to the fifth cause of action based on lack of good faith and fair dealing, was a documentary defense (CPLR 3211(a)(1)). In order for such a defense to succeed, the proffered documentation must definitively dispose of the claim. This is far from the situation presented by this record.

The first cause of action is based on the Board resolution of February 16, 1984, which reads in its entirety as follows:

BE IT RESOLVED that the plans of Carol Demas as submitted to the Board providing for an addition to her Penthouse are hereby approved by the Board on the following conditions:

1) the skylight is not be a bubble but is to be flat;

2) the permission of the Building Department is based upon use of approximately 400 sq. ft. of the usable 1200 sq. foot area with any additional square footage provided by a variance obtained at her own cost; and

3) the Board is setting the assessment for the additional use of services and the increase in real estate taxes caused by the addition and the Demas agreement thereto.

This resolution was, on its face, a binding commitment upon which plaintiffs were entitled to rely (Municipal Consultants & Publishers, Inc. v. Town of Ramapo, 47 N.Y.2d 144, 417 N.Y.S.2d 218, 390 N.E.2d 1143). It is argued by defendant, however, that this approval was entirely subject to an unstated condition that had been previously imposed by the Board action on January 27, 1983, advising Demas that any structural addition to her apartment would be "conditional upon the explicit assent of the resident owners of PHA and PHB (i.e. the Adamses and the Balkinds)." Since these two other penthouse roof tenants strenuously objected to the Demas plans, defendant argued, in the affidavit of its president, that the Board was entitled, free of any liability as a matter of law, to rescind its approval, which it did at a meeting held on September 20, 1984. Special Term's adoption of this view was erroneous.

The 1984 Board resolution was complete and unambiguous on its face. The parol evidence rule provides that unless conditions are expressed in the agreement itself (and here three non-controversial ones were expressly stated), parol evidence may not be employed to engraft another (Woodmere Academy v. Steinberg, 41 N.Y.2d 746, 395 N.Y.S.2d 434, 363 N.E.2d 1169). No prior oral or written understanding is competent to contradict, vary, add to, or subtract from the terms of the later writing (Richardson on Evidence, 10th ed. § 601; Thomas v. Scutt, 127 N.Y. 133, 27 N.E. 961). Furthermore the parol evidence relied upon by defendant, consisting of voluminous correspondence and conversations between the three penthouse tenants inter sese and the Board, was itself in bitter conflict, and was therefore a wholly inappropriate basis for summary dismissal on the face of the complaint.

Special Term also erred in dismissing the fifth cause of action (breach by the Board of its...