| Capital Dist. Enters., LLC v Windsor Dev. of Albany, Inc. |
| 2010 NY Slip Op 09325 [79 AD3d 1424] |
| December 16, 2010 |
| Appellate Division, Third Department |
| Capital District Enterprises, LLC, et al., Appellants, v WindsorDevelopment of Albany, Inc., et al., Respondents. |
—[*1] Hodgson Russ, L.L.P., Albany (Richard L. Weisz of counsel), for respondents.
Spain, J.P. Appeal from an order of the Supreme Court (Williams, J.), entered March 5, 2010 inSaratoga County, which, among other things, granted defendants' cross motion for summary judgment.
This dispute involves a 2006 contract for the purchase of undeveloped real property in the Town ofMalta, Saratoga County. Plaintiff Capital District Enterprises, LLC[FN1]agreed to purchase the property from defendant Windsor Development of Albany, Inc.[FN2]pursuant to a pricing structure that is dependent on the number of "units" that Capital would getauthorization to construct on the property. It is undisputed that, at the time the contract was executed,the [*2]parties expected that Capital would build residential apartmentcomplexes on the property and, had that occurred, each apartment would constitute one unit.
Shortly prior to the expected closing date on the contract, however, Capital disclosed that itintended to apply to the Town for authorization to construct a hotel and commercial buildings, inaddition to the apartment complexes originally contemplated for the property. A dispute then aroseregarding how the term "units" would apply to commercial space and hotel rooms. Windsorcommenced an action against Capital seeking a declaration that hotel rooms and commercial space beconsidered "units" pursuant to the contract or, in the alternative, for rescission. Plaintiffs thencommenced a separate action against defendants, seeking, among other things, specific performance ofthe contract. Prior to discovery, both sides moved for consolidation of the actions and for summaryjudgment; Supreme Court granted the motions for consolidation and held that, due to a failure toadequately define "units," there was no meeting of the minds with regard to the price clause anddeclared the contract to be a nullity.
Plaintiffs appealed, and we reversed (Capital Dist. Enters., LLC v Windsor Dev. of Albany, Inc., 53 AD3d767 [2008]). Specifically, we held that because plaintiffs did "not directly dispute Windsor'sposition that the term 'units' refers to more than just residential space . . . it cannot be said,as a matter of law, that there was no meeting of the minds on the issue" (id. at 771). Therefore,we reversed and remitted the matter to Supreme Court for a determination of the meaning of the word"units" as applied to commercial development (id.).
During discovery, however, plaintiffs, through the deposition testimony of one of Capital's managingdirectors, took the position that the word "unit" was meant to apply only to residential development andthat the anticipated commercial development would not increase the purchase price. Plaintiffs then againmoved for summary judgment seeking specific performance and defendants cross-moved for summaryjudgment seeking a declaration that the contract was unenforceable, arguing that the extrinsic evidenceadduced had established that the parties had differing understandings of the term "units" and,accordingly, there was no meeting of the minds with respect to the purchase price.[FN3]Supreme Court found that the ambiguity in the term "units" could not be resolved by resort to extrinsicevidence and, holding there to have been no meeting of the minds, declared the contract to beunenforceable and granted defendants' cross motion for summary judgment. Plaintiffs now appeal.
We affirm. "If an agreement is not reasonably certain in its material terms, there can be no legallyenforceable contract" (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475,482 [1989], cert denied 498 US 816 [1990] [citations omitted]). In the prior appeal on thismatter, our decision that summary judgment was inappropriate at that time was premised on plaintiffs'failure to take a position with regard to what meaning the term "units" had with respect to commercialdevelopment. Accordingly, we concluded that the parties intended to be bound by [*3]the contract regardless of the type of development contemplated for theproperty and that the question of what "units" would mean in a commercial context would need to beresolved by the trier of fact. It is now clear, however, from the deposition testimony submitted by theparties in support of their motions, both that neither party contemplated commercial development or theconstruction of anything other than residential units on the site at the time the contract was executed andthat there was never any agreement as to the purchase price if the property were developed forcommercial or mixed use. Indeed, plaintiffs have now squarely taken the position that the word "units"means only residential units and that no additional payments would be due for any authorizedcommercial development, whereas defendants have always maintained that they expected to be paidcommensurate with all aspects of development on the property. Accordingly, given that it is nowessentially conceded that there was no meeting of the minds with respect to what pricing structurewould be employed for commercial development, we must find that the contract is void (see Matterof Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 590[1999]; Clifford R. Gray, Inc. v LeChaseConstr. Servs., LLC, 31 AD3d 983, 985-986 [2006]; Bellevue Bldrs. Supply vBelmonte, 271 AD2d 849, 850 [2000]).
Kavanagh, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Capital eventually assigned its rightsand obligations under the contract to plaintiff CDP Kelch, LLC.
Footnote 2: In November 2006, Windsorconveyed the property to, and assigned its rights and obligations under the contract to, defendant MaltaLand I, LLC, an entity formed by Windsor for such purpose.
Footnote 3: Given Supreme Court's inherentpower to award summary judgment to a nonmoving party on an issue already squarely presented to thecourt, we find it unnecessary to address plaintiffs' argument that Supreme Court abused its discretion inconsidering defendants' untimely cross motion for summary judgment (see CPLR 3212 [b];Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111 [1984]).