Kilmer v. Miller

• Decision Date: 07 June 2012
• Citation: 946 N.Y.S.2d 288,96 A.D.3d 1133,2012 N.Y. Slip Op. 04448
• Parties: Richard H. KILMER, et al., Respondents, v. George MILLER, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1133

946 N.Y.S.2d 288

2012 N.Y. Slip Op. 04448

Richard H. KILMER, et al., Respondents,

v.George MILLER, et al., Appellants.

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

June 7, 2012.

Timothy Nugent, East Greenbush (Michael J. Hutter of Powers & Santola, L.L.P., Albany, of counsel), for appellants.

Freeman & Howard, P.C., Hudson (Paul M. Freeman of counsel), for respondents.

Before: PETERS, P.J., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ.

MALONE JR., J.

Appeal from an amended order of the Supreme Court (Hummel, J.), entered October 4, 2011 in Rensselaer County, which, among other things, partially denied defendants' motion to dismiss the complaint.

In February 2004, defendants entered into a contract with plaintiffs to purchase plaintiffs' property located in Rensselaer County. The contract required defendants to make a down payment prior to closing and then to pay a monthly amount for 20 years, at the end of which time the remaining balance was to be paid in full and defendants would receive a warranty deed to the property. Defendants were also required to pay the real property taxes and the cost of any repairs and maintenance to the property, and maintain relevant insurance policies. The contract contained a clause whereby, in the event of defendants' default, plaintiffs could demand payment of the remainder of the agreed-upon purchase price and, if defendants refused to pay, any monthly payments made prior to the default would be deemed rent and the agreement to purchase the property would be terminated. In addition, the parties entered into an agreement for defendants' purchase of plaintiffs' furniture and other miscellaneous items.

In November 2010, defendants provided written notice to plaintiffs that they were unable to make further monthly payments, admitted default for the payments due in October and November 2010, and stated that they had vacated the property. Concurrently, plaintiffs provided written notice to defendants of the default in the payment of the monthly payments, late fees, real property taxes and insurance premiums and demanded payment and proof of payment of all amounts, including an unpaid balance of the furniture purchase agreement. Plaintiffs also informed defendants that they were exercising their option in the contract to accelerate payment of the balance of the purchase price.

After defendants failed to comply with their request, plaintiffs commenced this breach of contract action in January 2011. In lieu of answering, defendants moved to dismiss the complaint, asserting that the action was barred by the terms of the contract. Plaintiffs opposed that motion and cross-moved for summary judgment. Based upon the language of the contract, Supreme Court partially granted defendants' motion by dismissing the portions of the complaint seeking payment of late fees, additional rent, costs and counsel fees. The court partially granted plaintiffs' cross motion for summary judgment after finding that, although the amounts remained a question of fact, defendants were liable for any unpaid property taxes, damage to the property, the cost of insurance, and any unpaid balance with respect to the furniture purchase agreement.¹ Defendants appeal.

Defendants contend that Supreme Court improperly granted plaintiffs' motion for summary judgment with respect to liability and that, instead, the court should have fully granted their motion to dismiss the complaint because plaintiffs' claims are barred by the documentary evidence. Such motion to dismiss succeeds when “the documentary evidence utterly refutes [the] 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 [2002];seeCPLR 3211[a][1]; Mason v. First Cent. Natl. Life Ins. Co. of N.Y., 86 A.D.3d 854, 855, 927 N.Y.S.2d 694 [2011] ).

Here, according to the unambiguous terms of the parties' contract, after a default by defendants,² in the event that plaintiffs exercised their option to accelerate payment of the remaining balance of the purchase price and defendants failed to tender such payment, the “agreement, and all rights and obligations [t]herein, [would] become null and void.” In that situation, the contract expressly stated that plaintiffs would be “entitled to retain any and all monies paid by [defendants] to the date of default, and accruing thereafter, as liquidated damages.” In addition, the contract expressly stated that “neither party [would] have any other claim against the other for any obligations [t]herein.” Thus, pursuant to the plain language of the contract, by exercising their option to...