Hamburg v. Westchester Hills Golf Club, Inc.
| Decision Date | 17 February 2011 |
| Docket Number | No. 11537/11.,11537/11. |
| Citation | 36 Misc.3d 1223,2011 N.Y. Slip Op. 52521,957 N.Y.S.2d 264 |
| Parties | Stephen HAMBURG and Antoinette Delbene, Plaintiffs, v. WESTCHESTER HILLS GOLF CLUB, INC., Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Delbello Donnellan Weingarten, Wise & Wiederkehr, LLP, Lee S. Wiederkehr, White Plains.
Gaines, Gruner, Ponzini & Novick, LLP, Joseph M. Buderwitz, Esq., White Plains.
The following papers numbered 1 to 24 have been read on this motion pursuant to CPLR 3212 brought by plaintiffs Stephen Hamburg and Antoinette Delbene seeking partial summary judgment and issuance of a permanent injunction and upon this cross-motion, pursuant to CPLR 3212, brought by defendant Westchester Hills Golf Club, Inc. seeking summary judgment dismissing plaintiffs' complaint.
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¦Papers ¦Numbers ¦
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¦Notices of Motion/Cross Motion/Affirmations/Affidavits;¦1–3, 10–15¦
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¦Exhibits; ¦4–9, 16–20¦
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¦Memorandum of Law; ¦21 ¦
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¦Replying Affirmations/exhibit; ¦22–24 ¦
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Upon the foregoing papers, it is ORDERED that, for the reasons that follow, the plaintiffs' motion for partial summary judgment is denied; and it is further ORDERED that defendant's motion for summary judgment is granted.
Plaintiffs bring this action to obtain injunctive relief compelling defendant Westchester Hills Golf Club to remove fencing on that portion of the border between the defendant's golf course and plaintiffs' residential property, and precluding defendant from erecting any other such fence in the future, and requiring defendant to provide natural screening in compliance with the approval of its special permit application by the City of White Plains Common Council.
The events giving rise to this action arose out of defendant's application to secure an amended special use permit to demolish a 100 year-old maintenance and storage structure and to construct a prefabricated replacement maintenance and storage structure between the fourth and sixth hole of the golf course grounds. Plaintiffs are residential neighbors whose property borders defendant's golf course and who are in sight view of the maintenance and storage structure. On July 5, 2005, a public hearing was held before the White Plains Common Council. Plaintiff Stephen Hamburg spoke at the meeting as did several other residential neighbors, raising a variety of questions about the project. Thereafter, on July 24, 2005, defendant hosted an informational luncheon attended by certain of defendant's employees, members and representatives as well as plaintiffs and some of the other residential neighbors. What occurred at this luncheon is in dispute.
It is plaintiffs' contention that at this luncheon Drew Bollard, the defendant's general manager, specifically agreed that defendant would forever forego the construction of any fencing within view of plaintiffs' property in exchange for plaintiffs' withdrawal of their opposition to defendant's application for an amended special use permit and that this agreement was confirmed contemporaneously by Bob Valley, the defendant's director of construction and by Bob Lynch, the defendant's vice president.
It is the defendant's position that neither Mr. Bollard and Mr. Lynch entered into such agreement on the defendant's behalf at this luncheon. Defendant further asserts that neither John Salley, a member of defendant golf club nor Christopher Fisher, counsel for defendant, nor anyone else associated with the defendant ever entered into such an agreement to forebear installation of fencing between the golf course and plaintiffs' property and that any such agreement would never have been verbally made but would have only been considered in written form after approval by defendant's Board of Governors following recommendation from the defendant's Safety and Maintenance Committee. By affirmation, defendant's counsel Christopher Fisher would make various factual assertions, among them that he was present at the July 24, 2005 luncheon and that the issue of an existing chain link border fence was raised as a matter of interest to the plaintiffs and neighbors but that such was not relevant to the issue of the planned maintenance and storage facility and was not the subject of an agreement.
On August 1, 2005, the matter of the defendant's application for an amended special use permit was again before the Common Council for discussion. Plaintiffs contend that the agreement reached between them and the defendant at the luncheon was acknowledged and confirmed at the meeting and that the recording of the relevant aspects of the Common Council's meeting of that date evidences such. Plaintiffs particularly refer to the statement of plaintiff Hamburg, Plaintiffs also quote the statement of the then-Mayor Delfino, referring to the luncheon, that, “I was there Sunday and I sat with them for a while and they brought up the same issues and I asked them exactly what occurred and they said just what you said; some did want it and some didn't want it and wherever they could accommodate those that want it and others that do not.” Mr. Fisher, later confirmed, At the conclusion of the public comment period, the Common Council voted unanimously to approve defendant's special use permit.
Almost four years later, in June of 2009, defendant constructed a boundary-line fence between the golf course and plaintiffs' property. Plaintiffs also contend that defendant has wrongfully removed trees and other vegetation. This action followed. In these applications, the parties move for summary relief.
The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law” (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [1985] ). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v. New York University Medical Center, 64 N.Y.2d at 853). However, “[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial” (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ). “The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues” (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ).
Before plaintiffs may secure redress for the breach of a contract, there must have been a promise made that is sufficiently certain and specific such that the parties' intentions are ascertainable ( see, Maffea v. Ippolito, 247 A.D.2d 366 [2d Dept., 1998] ). That is, “in order for a breach of contract to exist, there must be a meeting of the minds on the agreement said to have been breached” (Gomez v. Bicknell, 302 A.D.2d 107, 115 [2d Dept., 2002] ). “Mutual assent evincing the intention of the parties to form a contract is essential” (Gomez v. Bicknell, 302 A.D.2d at 115–116) and “[a]n agreement to agree, which leaves material terms of a proposed contract for future negotiation, is unenforceable” (Maffea v. Ippolito, 247 A.D.2d at 367;see Martin Delicatessen v. Schumacher, 52 N.Y.2d 105, 109 [1981] ).
Here, plaintiffs have failed in the first instance to demonstrate the existence of the mutual assent to form a contract, since there no evidence, other than plaintiffs own interpretation of the events of the July 24, 2005 luncheon and the August 1, 2005 Common Council meeting, that defendant intended to be bound to a promise to forever refrain from erecting a border fence...
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