| Tomhannock, LLC v Roustabout Resources, LLC |
| 2014 NY Slip Op 01649 [115 AD3d 1074] |
| March 13, 2014 |
| Appellate Division, Third Department |
| —Tomhannock, LLC, Respondent, v RoustaboutResources, LLC, Appellant, et al., Defendants. |
—[*1] Fowler, Doyle, Spain, Spiess & Florsch, PLLC, Troy (Dustin S. Delp of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (McGrath, J.), enteredJanuary 15, 2013 in Rensselaer County, which, among other things, denied a motion bydefendant Roustabout Resources, LLC to dismiss the complaint against it.
In April 2002, plaintiff sold a 15.94-acre parcel of vacant land located in the Townof Pittstown, Rensselaer County. In conjunction therewith, plaintiff and the buyersentered into an option agreement, whereby the buyers agreed to reconvey a 3.5-acreportion of the parcel upon plaintiff's request—provided such request was madewithin 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 andproperty taxes assessed upon the entire parcel—apparently representing itsproportional share of taxes for the 3.5-acre parcel. The agreement, which was bindingupon the parties' heirs and assigns, was duly recorded in the Rensselaer County Clerk'soffice.
In October 2005, the buyers conveyed the entire 15.94-acre parcel to defendantsRonald [*2]F. LaPorte and Linda J. LaPorte, and suchconveyance was expressly "[s]ubject to enforceable . . . conditions andrestrictions of record." Thereafter, in January 2011, plaintiff advised the LaPortes that itwas exercising its option with respect to the 3.5-acre parcel. Instead of reconveying thatparcel to plaintiff, however, the LaPortes conveyed the entire 15.94-acre parcel todefendant Roustabout Resources, LLC. Upon learning of that transfer in July 2011,plaintiff again exercised its option and requested that Roustabout reconvey the subjectparcel. Roustabout refused, prompting plaintiff to commence this action for specificperformance. Roustabout brought a pre-answer motion to dismiss pursuant to CPLR3211 (a) (1) and (7) and, after the LaPortes answered, they also moved to dismissplaintiff's complaint. Supreme Court, treating defendants' submissions as motions forsummary judgment, granted the LaPortes' motion and denied Roustabout's motion.Roustabout now appeals.[FN*]
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 summaryjudgment course or otherwise were given notice of Supreme Court's intention to proceedin this fashion (see Pilatich vTown of New Baltimore, 100 AD3d 1248, 1250 [2012]), Supreme Court erredin treating Roustabout's pre-answer motion to dismiss as a motion for summary judgment(see Matter of Dashnaw v Townof Peru, 111 AD3d 1222, 1223-1224 [2013]).
Turning to the merits, on a motion to dismiss pursuant to CPLR 3211 (a) (7), wemust "afford the complaint a liberal construction, accept as true the allegations containedtherein, accord the plaintiff the benefit of every favorable inference and determine onlywhether the facts alleged fit within any cognizable legal theory" (Woodhill Elec. v Jeffrey Beamish,Inc., 73 AD3d 1421, 1421 [2010] [internal quotation marks and citationsomitted]; see Torok v Moore'sFlatwork & Founds., LLC, 106 AD3d 1421, 1421 [2013]; Schmidt & Schmidt, Inc. v Townof Charlton, 68 AD3d 1314, 1315 [2009]). "Whether the plaintiff will ultimatelybe successful in establishing those allegations is not part of the calculus" (Landon v Kroll Lab. Specialists,Inc., 22 NY3d 1, 6 [2013] [internal quotation marks and citations omitted]; accord Vermont Mut. Ins. Co. vMcCabe & Mack, LLP, 105 AD3d 837, 839 [2013]; see Stone Ridge Country Props.Corp. v Mohonk Oil Co., Inc., 84 AD3d 1556, 1557 [2011]). To state a cause ofaction for specific performance, plaintiff was required to plead sufficient facts todemonstrate that it had substantially performed its contractual obligations under theoption agreement and was ready, willing and able to fulfill its remaining obligations withrespect thereto, that Roustabout was able but unwilling to convey the 3.5-acre parcel andthat plaintiff had no adequate remedy at law (see Ouimet v Fitzsimmons, 68 AD3d 1507, 1508 [2009],lv denied 14 NY3d 714 [2010]; cf. Bayly v Broomfield, 93 AD3d 909, 911 [2012]). As ageneral proposition, a party "attempting to validly exercise an option to purchase realproperty must strictly adhere to the terms and conditions of the option agreement"(O'Rourke v Carlton, 286 AD2d 427, 427 [2001]; see Matter of Lamberti vAngiolillo, 73 AD3d 463, 463 [2010], lv denied 15 NY3d 711 [2010];Raanan v Tom's Triangle, 303 AD2d 668, 669 [2003]).
Here, plaintiff alleged that it executed the option agreement with the originalpurchasers of the 15.94-acre parcel and that such agreement, which was by its own termsbinding upon the purchasers' heirs and assigns, was duly recorded in the RensselaerCounty Clerk's office. Plaintiff further alleged that, in compliance with the terms of theoption agreement, it made the [*3]agreed-uponpercentage payments of school and property taxes, that it exercised its option withrespect to the 3.5-acre parcel within the requisite 10-year period and that Roustaboutthereafter refused to reconvey the parcel. Such allegations, in our view, are sufficient towithstand Roustabout's motion to dismiss under CPLR 3211 (a) (7). Contrary toRoustabout's assertion, nothing within the four corners of the option agreement requiresplaintiff to obtain subdivision approval prior to exercising its option with respect to the3.5-acre parcel, nor does the option agreement provide that the failure to obtain suchapproval renders the underlying agreement null and void (compare Jorjill Holding v GriecoAssoc., 6 AD3d 500, 501 [2004], lv denied 4 NY3d 703 [2005];Felicello v Gandolfo, 147 AD2d 439, 439-440 [1989]).
To the extent that Roustabout contends that plaintiff will be unable to record a deedfor the 3.5-acre parcel without first obtaining subdivision approval or suggests thatpermitting the requested conveyance will cloud title to the remaining portion of the15.94-acre parcel and/or create uncertainty with respect to the parties' liability for thepayment of taxes thereon, these are issues that need not concern us in the context of amotion to dismiss under CPLR 3211 (a) (7). Finally, we are unable to conclude that thedocumentary evidence tendered by Roustabout in support of its motion to dismiss underCPLR 3211 (a) (1) "utterly refute[d] plaintiff's factual allegations, [thereby] conclusivelyestablishing a defense as a matter of law" (Crepin v Fogarty, 59 AD3d 837, 838 [2009] [internalquotation marks and citation omitted]; compare Jorjill Holding v Grieco Assoc.,6 AD3d at 501). Accordingly, Roustabout's motion to dismiss the complaint was properlydenied.
Peters, P.J., Stein and McCarthy, JJ., concur; Egan Jr., J., not taking part. Orderedthat the order is affirmed, with costs.
Footnote *: Plaintiff has notcross-appealed from the dismissal of its second and third causes of action against theLaPortes.