Ermiger v. Black

• Citation: 827 N.Y.S.2d 764,36 A.D.3d 1053,2007 NY Slip Op 197
• Decision Date: 11 January 2007
• Docket Number: 500960.
• Parties: KENNETH ERMIGER, Respondent, v. GENE BLACK et al., Appellants. (And a Third-Party Action.)
• Court: New York Supreme Court Appellate Division

36 A.D.3d 1053

827 N.Y.S.2d 764

2007 NY Slip Op 197

KENNETH ERMIGER, Respondent, v. GENE BLACK et al., Appellants. (And a Third-Party Action.)

500960.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided January 11, 2007.

Appeal from an order of the Supreme Court (Krogmann, J.), entered November 1, 2005 in Warren County, which, inter alia, partially granted plaintiff's motion for summary judgment.

Kane, J.

Plaintiff entered into a contract to purchase a parcel of real property from defendants Gene Black, Elio Micheli, Michael R. Micheli, Jean M. Rooney, Joseph A. Micheli and Green Harbour-Cooper Point Acres (hereinafter collectively referred to as defendants). Just prior to closing on the property, the Green Harbour Homeowners' Association commenced an action against plaintiff and defendants seeking to clarify and enforce its rights to an easement located on the property. While that action was pending, plaintiff agreed to proceed with the purchase of the property and entered into an escrow agreement with defendants whereby he would deposit $400,000 of the purchase price into an escrow account. Pursuant to the agreement, third-party defendant was designated the escrow agent and was directed to return the funds to plaintiff if certain specified events occurred, including if the Association's legal action resulted in the "granting of a fee or easement interest to which the real property conveyed pursuant to the [a]greement is made subject." If the specified events did not occur, the funds would be released to defendants.

After extended litigation (see generally Black v Green Harbour Homeowners' Assn., Inc., 19 AD3d 962 [2005]; Green Harbour Homeowners' Assn., Inc. v G.H. Dev. & Constr., Inc., 14 AD3d 963 [2005]; Matter of Green Harbour Homeowners' Assn. v Town of Lake George Planning Bd., 1 AD3d 744 [2003]; Green Harbour Homeowners' Assn. v G.H. Dev. & Constr., 307 AD2d 465 [2003], lv dismissed 100 NY2d 640 [2003]), this Court determined that the Association was entitled to an easement for vehicular and pedestrian access over a certain roadway and pedestrian access over a strip of land on the subject parcel (see Green Harbour Homeowners' Assn., Inc. v G.H. Dev. & Constr., Inc., 14 AD3d 963, 965-966 [2005], supra). In light of the final determination of the Association's litigation, plaintiff demanded the escrow funds. Defendants objected to the payment of the escrow funds to plaintiff and demanded that the funds instead be turned over to them because none of the triggering events had occurred. Plaintiff commenced this action seeking, among other things, release of the escrow funds. Defendants and defendant Jones Ferradino, as assignee of Rooney, counterclaimed for release of the funds to them and served a third-party complaint on the escrow agent. Supreme Court granted plaintiff's motion for partial summary judgment and denied defendants' cross motion for the same relief, ordering the release of the escrow funds to plaintiff. Defendants and Ferradino appeal.

Plaintiff is entitled to receive the funds from the escrow account. An unambiguous contract will be enforced as written. Courts determine as a matter of law whether a contract is ambiguous by looking at the document itself and the circumstances under which it was executed, and only look to extrinsic evidence...