Dreisinger v. Teglasi
Decision Date | 21 July 2015 |
Docket Number | 14989, 308023/10 |
Citation | 130 A.D.3d 524,2015 N.Y. Slip Op. 06197,13 N.Y.S.3d 432 |
Parties | Albert DREISINGER, Plaintiff–Respondent, v. Victor TEGLASI, et al., Defendants–Appellants. |
Court | New York Supreme Court — Appellate Division |
Carter Ledyard & Milburn LLP, New York (Christopher Rizzo of counsel), for appellants.
Law Office of Ronald V. DeCaprio, Garnerville (Ronald V. DeCaprio of counsel), for respondent.
ACOSTA, J.P., SAXE, DeGRASSE, RICHTER, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered May 30, 2014, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without cost, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
The issue in this case is whether defendants are entitled to summary judgment dismissing the complaint, where plaintiff alleges that defendants breached an agreement to refrain from objecting to plaintiff's plans or applications to build a residence on a parcel of land adjacent to defendants' property. The parties also dispute whether defendants had an affirmative obligation to assist plaintiff's proposed construction by executing necessary documents. We find that, because plaintiff failed to demonstrate that defendants' cooperation was required, defendants have not breached the contract and are entitled to summary judgment.
In 2003, the parties each purchased, from the estate of the prior owner, adjacent parcels of real property, located in the Riverdale section of the Bronx, that had been subdivided from a single parcel. Plaintiff acquired an undeveloped portion of the land, and defendants acquired a portion that was already improved with a single-family dwelling.
Before the parties closed on their respective purchases, defendants approached plaintiff about acquiring the rear portion of his lot (the transfer portion). They entered into a written agreement on or about February 13, 2003, pursuant to which defendants would acquire their lot and the transfer portion from the owner, and would bear all costs associated with the necessary applications to government agencies to incorporate the transfer portion into their lot, including obtaining a survey, recording costs, and any transfer tax liability.
Pursuant to paragraph 5 of the agreement, defendants agreed that they would “forward no objection, directly or indirectly, to any plan, application for approval for the construction of[,] and the construction of a residence” on plaintiff's lot. The parties also agreed, in paragraph 9, to “cooperate fully and execute any documents and take all additional actions that may be necessary or appropriate to give full force and effect to the basic terms of” the agreement.
Plaintiff approached defendants in or around 2005, approximately two years after the closing, and showed defendant Victor Teglasi building plans prepared by an architect. According to plaintiff's deposition testimony, he told Mr. Teglasi that “he should sign whatever papers [plaintiff's] architect needs him to sign.” Defendants requested a copy of the architect's plans, but plaintiff refused, stating that defendants “had certain obligations under the agreement” but that plaintiff was not required to provide them with plans. According to plaintiff, defendants refused then and on several subsequent occasions to sign any documents that would enable plaintiff to proceed with the construction. However, the record does not demonstrate that plaintiff presented any documents for defendants to sign, other than an unidentified “waiver.”1
The parties' dispute escalated over the next several years, during which time plaintiff threatened legal action and withdrew permission for defendants to use a driveway on his property. Defendants, through their attorney, requested blueprints, but plaintiff did not provide them. In 2010, plaintiff's architect prepared an unsigned letter, which plaintiff understood was forwarded to defendants. The letter, as read into the deposition record, stated that “[t]he proposed residence has been designed to comply with all required zoning bulk regulations” and did not use any of defendants' zoning lot area or affect their future development rights. Although plaintiff could not recall at his deposition the size of his lot or the dimensions of the proposed building, he testified that the structure would be two stories and that his architect advised him that the building was within required limits and did not infringe on defendants' property.
Nonetheless, plaintiff could not confirm whether his plans were ever submitted to or approved by any City agency. He “believe[d]” the plans had been submitted to the Department of Buildings, but was not sure if they had been approved. He did not know whether he had obtained a building permit or filed any documents with the Board of Standards and Appeals or the City. Furthermore, he was unsure whether any applications were filed with any City agency, by his architect or any other professional, for erection of a building on his property.
Plaintiff commenced this action in September 2010, seeking specific enforcement of the parties' agreement and damages for breach of contract and fraud. After answering, defendants served discovery requests seeking copies of the plans. Although no response was received, a note of issue was filed in September 2013.
Defendants moved for summary judgment dismissing the complaint, arguing that they could not have breached the contract because plaintiff had never provided them with any approved plan for defendants' consent. Counsel for defendants represented that he had conducted a Department of Buildings record search and found no application for a new building at plaintiff's property. Defendants argued that they “cannot prevent plaintiff from doing something he has no right to do in the first place,” and therefore, there is no “real injury” to plaintiff resulting from any claimed actions by them. Since there is no factual issue requiring trial and no justiciable controversy, defendants argued, the action should be dismissed.
Plaintiff responded that the agreement was clear that, in exchange for plaintiff agreeing to convey a portion of his property to defendants, defendants agreed to cooperate fully, not only by refraining from any objection, but also by affirmatively assisting plaintiff as necessary. He further argued that the agreement does not require him to provide approved plans, or any other document, for defendants' consent, and that the reason he could not file plans or complete construction was that defendants had refused to sign waivers or cooperate with him.
The court denied defendants' motion, finding that they had failed to meet their initial burden of establishing their entitlement to summary judgment. The court noted that the agreement, which required defendants not to object to plaintiff's construction, “was not contingent upon the plaintiff's presentation of construction plans.” Defendants appeal.
Initially, although defendants' arguments on appeal differ from those made in support of their motion, they may be considered by this Court because they present a pure legal issue of contract interpretation, which appears on the face of the record and could not have been avoided if raised below (see Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209–210, 641...
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