| Arker Cos. v New York State Urban Dev. Corp. |
| 2008 NY Slip Op 00437 [47 AD3d 739] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Arker Companies et al., Appellants, v New York StateUrban Development Corporation, Doing Business as Empire State Development Corporation, etal., Respondents. |
—[*1] Arent Fox, LLP, New York, N.Y. (Bernice K. Leber and Aiesha Battle of counsel), forrespondent New York State Urban Development Corporation, doing business as Empire StateDevelopment Corporation. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Jill F. Spielberg ofcounsel), for respondents New York State Dormitory Authority. Andrew M. Cuomo, Attorney General, New York, N.Y. (Nancy A. Spiegel and OwenDemuth of counsel), for respondent State of New York and New York State Office of MentalHealth.
In an action, inter alia, for specific performance of a contract for the sale of real property, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Suffolk County (Emerson, J.), dated December 12, 2006, as granted that branch of the motion[*2]of the defendant New York State Urban DevelopmentCorporation, doing business as Empire State Developmental Corporation, which was forsummary judgment dismissing the first, third, fourth, and fifth causes of actions insofar asasserted against it, granted those branches of the separate motions of the defendants the State ofNew York, the New York State Office of Mental Health, and the New York State DormitoryAuthority which were to dismiss the complaint insofar as asserted against them and, uponsearching the record, awarded the plaintiffs damages on their second cause of action only in theamount of their $250,000 deposit, plus accrued interest.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
"Parties to a contract for the sale of real property may agree, as they did here, to restrict theliability resulting from a breach, or may agree that no damages will be payable at all once thestatus quo ante has been restored" (Emptage & Assoc., Inc. v Cape Hampton, LLC, 19 AD3d 536, 537[2005]). "When a contract for the sale of real property contains a clause specifically setting forththe remedies available to the buyer if the seller is unable to satisfy a stated condition,fundamental rules of contract construction and enforcement require that we limit the buyer to theremedies for which it provided in the sales contract" (101123 LLC v Solis Realty LLC, 23 AD3d 107, 108 [2005]).
The defendant seller, New York State Urban Development Corporation, doing business asEmpire State Development Corporation (hereinafter ESDC), established its prima facieentitlement to judgment as a matter of law dismissing the first, third, fourth, and fifth causes ofaction. ESDC's termination of the subject purchase-and-sale agreement was based on communityopposition to the sale and was not made in bad faith (see L.J.B. Corp. v City of NewYork, 182 AD2d 485 [1992]). In opposition, the plaintiffs failed to raise a triable issue offact. Since the limited liability provision of the agreement provided for the return of the plaintiffs'deposit as the sole remedy for ESDC's breach, the Supreme Court properly granted that branch ofESDC's motion which was for summary judgment dismissing the first, third, fourth, and fifthcauses of action and, upon searching the record, properly limited the plaintiffs' damages on theirsecond cause of action to the amount of their $250,000 deposit, plus accrued interest.
The Supreme Court also properly granted that branch of the motion of the defendant NewYork State Dormitory Authority which was to dismiss the complaint insofar as asserted against itsince the documentary evidence conclusively established that there was no privity of contractbetween it and the plaintiffs (see CPLR 3211 [a] [1]; M. Fund, Inc. v Carter, 31 AD3d 620, 621 [2006]; Berardino v Ochlan, 2 AD3d 556[2003]; Trade Source v Westchester Wood Works, 290 AD2d 437, 438 [2002]).
Finally, since the Supreme Court lacks subject matter jurisdiction over breach of contractcauses of action asserted against the State of New York, the defendants State of New York andthe New York State Office of Mental Health were entitled to dismissal of the causes of actionsounding in breach of contract insofar as asserted against them (see Sims v State of New York, 30AD3d 949 [2006]; Matter of Barrier Motor Fuels v Boardman, 256 AD2d 405,405-406 [1998]). Ritter, J.P., Florio, McCarthy and Dickerson, JJ., concur.