Tomhannock, LLC v. Roustabout Res., LLC

• Decision Date: 13 March 2014
• Citation: 115 A.D.3d 1074,2014 N.Y. Slip Op. 01649,982 N.Y.S.2d 589
• Parties: TOMHANNOCK, LLC, Respondent, v. ROUSTABOUT RESOURCES, LLC, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 1074
982 N.Y.S.2d 589
2014 N.Y. Slip Op. 01649

TOMHANNOCK, LLC, Respondent,
v.
ROUSTABOUT RESOURCES, LLC, Appellant, et al., Defendants.

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

March 13, 2014.

Tuczinski, Cavalier & Gilchrist, PC, Albany (Andrew W. Gilchrist of counsel), for appellant.

Fowler, Doyle, Spain, Spiess & Florsch, PLLC, Troy (Dustin S. Delp of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, STEIN and EGAN JR., JJ.; McCARTHY, J., vouched in.

LAHTINEN, J.

Appeal from an order of the Supreme Court (McGrath, J.), entered January 15, 2013 in Rensselaer County, which, among other things, denied a motion by defendant Roustabout Resources, LLC to dismiss the complaint against it.

[982 N.Y.S.2d 590]

In April 2002, plaintiff sold a 15.94–acre parcel of vacant land located in the Town of Pittstown, Rensselaer County. In conjunction therewith, plaintiff and the buyers entered into an option agreement, whereby the buyers agreed to reconvey a 3.5–acre portion of the parcel upon plaintiff's request—provided such request was made within the 10–year option period. As partial consideration for the underlying conveyance, plaintiff reduced the purchase price for the 15.94–acre parcel (purportedly by $55,000) and, pursuant to the terms of the option agreement, agreed to pay 22% of the school and property taxes assessed upon the entire parcel—apparently representing its proportional share of taxes for the 3.5–acre parcel. The agreement, which was binding upon the parties' heirs and assigns, was duly recorded in the Rensselaer County Clerk's office.

In October 2005, the buyers conveyed the entire 15.94–acre parcel to defendants Ronald F. LaPorte and Linda J. LaPorte, and such conveyance was expressly “[s]ubject to enforceable ... conditions and restrictions of record.” Thereafter, in January 2011, plaintiff advised the LaPortes that it was exercising its option with respect to the 3.5–acre parcel. Instead of reconveying that parcel to plaintiff, however, the LaPortes conveyed the entire 15.94–acre parcel to defendant Roustabout Resources, LLC. Upon learning of that transfer in July 2011, plaintiff again exercised its option and requested that Roustabout reconvey the subject parcel. Roustabout refused, prompting plaintiff to commence this action for specific performance. Roustabout brought a pre-answer motion to dismiss pursuant to CPLR 3211(a)(1) and (7) and, after the LaPortes answered, they also moved to dismiss plaintiff's complaint. Supreme Court, treating defendants' submissions as motions for summary judgment, granted the LaPortes' motion and denied Roustabout's motion. Roustabout now appeals.¹

We affirm, albeit for reasons other than those expressed by Supreme Court. Initially, inasmuch as nothing in the record suggests that the parties either charted a summary judgment course or otherwise were given notice of Supreme Court's intention to proceed in this fashion ( see Pilatich v. Town of New Baltimore, 100 A.D.3d 1248, 1250, 954 N.Y.S.2d 663 [2012] ), Supreme Court erred in treating Roustabout's pre-answer motion to dismiss as a motion for summary judgment ( see Matter of Dashnaw v. Town of Peru, 111 A.D.3d 1222, 1223–1224, 976 N.Y.S.2d 288 [2013] ).

Turning to the merits, on a motion to dismiss pursuant to CPLR 3211(a)(7), we must “afford the complaint a liberal construction, accept as true the allegations contained therein, accord the...