Denenberg v. Schaeffer

• Decision Date: 30 March 2016
• Docket Number: 2015-06270, Index No. 600680/15.
• Citation: 2016 N.Y. Slip Op. 02316,137 A.D.3d 1197,29 N.Y.S.3d 387
• Parties: Robert DENENBERG, appellant, v. Richard SCHAEFFER, respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1197

29 N.Y.S.3d 387

2016 N.Y. Slip Op. 02316

Robert DENENBERG, appellant,

v.Richard SCHAEFFER, respondent.

2015-06270, Index No. 600680/15.

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

March 30, 2016.

Sullivan & Worcester LLP, New York, N.Y. (Andrew T. Solomon and Clark Freeman of counsel), for appellant.

Teitler & Teitler, LLP, New York, N.Y. (John M. Teitler and Alan S. Rabinowitz of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Garguilo, J.), dated July 7, 2015, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging breach of contract.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff purchased shares of stock in a certain corporation. After the price of the stock fell, the plaintiff sold his shares at a loss. The plaintiff subsequently commenced this action against the defendant, who was an officer of the corporation, and who had allegedly urged the plaintiff to invest in it. The complaint alleged that the defendant had orally agreed to indemnify him for any loss relating to his investment.

The defendant moved, inter alia, pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging breach of contract. The Supreme Court granted that branch of the defendant's motion. The plaintiff appeals.

On a motion to dismiss a complaint pursuant to CPLR 3211, the facts as alleged in the complaint must be accepted as true (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Yeon v. Mehta, 134 A.D.3d 701, 20 N.Y.S.3d 170 ). A motion made pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; see Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Hefter v. Elderserve Health, Inc., 134 A.D.3d 673, 22 N.Y.S.3d 454 ).

Here, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action to recover damages for breach of contract. The defendant produced a written share subscription agreement covering the subject matter of this action, which established that the plaintiff is precluded, by a merger clause contained in that writing, from presenting evidence of an alleged prior oral agreement between the parties regarding the same subject matter (see Marine Midland Bank–S. v. Thurlow, 53 N.Y.2d 381, 388, 442 N.Y.S.2d 417, 425 N.E.2d 805 ; Connolly v. Certilman Balin Adler Hyman, LLP, 122 A.D.3d 790, 791, 996 N.Y.S.2d 351 ; DePasquale v. Estate of DePasquale, 44 A.D.3d 606, 607, 843 N.Y.S.2d 357 ; Friends of Avalon Preparatory School v. Ehrenfeld, 6 A.D.3d 658, 658–659, 775 N.Y.S.2d 560 ). The plaintiff's contention that the alleged oral agreement was outside the scope of the merger clause is without merit. The written share subscription agreement was not incomplete on its face. Furthermore, the plaintiff failed to demonstrate that the alleged oral agreement “has no effect to vary, contradict or supplement the terms of a later agreement containing the general merger clause” (Matter of Primex Intl. Corp. v. Wal–Mart Stores, 89 N.Y.2d 594, 600, 657 N.Y.S.2d 385, 679 N.E.2d 624 ; cf. Thompson Bros. Pile Corp. v. Rosenblum, 121 A.D.3d 672, 673, 993 N.Y.S.2d 353 ; Matthius v. Platinum Estates, Inc., 74 A.D.3d 908, 909, 903 N.Y.S.2d 477 ). The plaintiff's additional contention that the merger clause could not be invoked by the defendant in this action is without merit (see Oxford Commercial Corp. v. Landau, 12 N.Y.2d 362, 365–366, 239 N.Y.S.2d 865, 190 N.E.2d 230 ; Banner Indus. v. Schwartz, 204 A.D.2d 190, 190–191, 612 N.Y.S.2d 861 ...