Leavitt Enter., Inc. v. Two Fulton Square, LLC

• Decision Date: 11 March 2020
• Docket Number: 2018–14389,Index No. 702971/18
• Citation: 181 A.D.3d 662,120 N.Y.S.3d 363
• Parties: LEAVITT ENTERPRISE, INC., et al., Appellants, v. TWO FULTON SQUARE, LLC, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

181 A.D.3d 662

120 N.Y.S.3d 363

LEAVITT ENTERPRISE, INC., et al., Appellants,

v.TWO FULTON SQUARE, LLC, et al., Respondents.

2018–14389

Index No. 702971/18

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

Submitted—December 3, 2019

March 11, 2020

Kevin Kervin Tung, P.C., Flushing, N.Y. (Ge Li of counsel), for appellants.

Rich, Intelisano & Katz, LLP, New York, N.Y. (Daniel E. Katz, John M. Giordano, and Trista W. McConnell of counsel), for respondents.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Queens County (Pam B. Jackman–Brown, J.), entered November 19, 2018. The order granted the defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In 2007, the plaintiff Leavitt Enterprise, Inc. (hereinafter Leavitt), purchased certain property located in Queens (hereinafter the Leavitt property). In 2013, Leavitt began construction of a hotel on the Leavitt property. The defendant Two Fulton Square, LLC (hereinafter Two Fulton), is the owner of certain property adjacent to the Leavitt property (hereinafter the Two Fulton property).

On March 25, 2014, Leavitt and Two Fulton executed a written cooperation agreement. Therein, they agreed to cooperate with each other to provide "reasonable access" to each other's property for the purposes of providing underpinning, rooftop protection, support of excavation, sidewalk/shed protection, construction monitoring, and any other necessities of construction. The cooperation agreement further provided that the agreement set forth the "entire" understanding of the parties. Following the execution of the cooperation agreement, Leavitt erected scaffolding in the front yard of a warehouse on Two Fulton's property. In 2015, construction of a four-building development began on Two Fulton's property. The defendant Top 8 Construction Corp. (hereinafter Top 8) was the general contractor of the construction project on Two Fulton's property.

In August 2017, construction was completed on the Leavitt property, where the plaintiff John Hotel, Inc. (hereinafter John Hotel), manages a hotel. In November 2017, Top 8 tendered a $5,000 check to John Hotel and erected scaffolding and sidewalk sheds on the Leavitt property.

In February 2018, Leavitt and John Hotel (hereinafter together the plaintiffs) commenced this action against Two Fulton and Top 8 (hereinafter together the defendants) to recover damages for breach of contract and trespass, and pursuant to RPAPL 871 to compel the defendants to remove the structures encroaching on the Leavitt property. The plaintiffs alleged, inter alia, that, in November 2017, they, in effect, orally modified the cooperation agreement and agreed to grant the defendants a license to construct and maintain the scaffolding until the construction work was completed for a monthly fee of $5,000. They alleged that the defendants only made one payment of $5,000 in November 2017.

The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, contending that the cooperation agreement was still in effect and that no payments were required thereunder. They further asserted that they had made a one-time "good faith" payment of $5,000 at the plaintiffs' request prior to erecting the scaffolding. The Supreme Court granted the defendants' motion. The plaintiffs appeal.

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v. Decolator, 121 A.D.3d 845, 847, 994 N.Y.S.2d 368 ; see 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 ; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Additionally, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 683, 48 N.Y.S.3d 450 ).

With regard to the cause of action to recover damages for breach of contract, although the cooperation agreement did not contain a clause prohibiting oral modification (see Lax v. Design Quest N.Y. Ltd., 101 A.D.3d 431, 955 N.Y.S.2d 34 ; Rooney v. Slomowitz, 11 A.D.3d 864, 867, 784 N.Y.S.2d 189 ), consideration is necessary to prove the existence of an oral modification of a written agreement (see Schwartzreich v. Bauman–Basch, Inc., 231 N.Y.196, 203, 131...