| First Am. Commercial Bancorp, Inc. v Saatchi & Saatchi Rowland,Inc. |
| 2008 NY Slip Op 07298 [55 AD3d 1264] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| First American Commercial Bancorp, Inc., Respondent, v Saatchi &Saatchi Rowland, Inc. (Formerly Saatchi & Saatchi Business Communications, Inc.), et al.,Appellants. (Appeal No. 2.) |
—[*1] Fix Spindelman Brovitz & Goldman, P.C., Fairport (Karl S. Essler of counsel), fordefendant-appellant Vanteon Corporation. Gates & Adams, P.C., Rochester (Douglas Gates of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.),entered October 17, 2007. The order, among other things, granted plaintiff's motion for leave torenew plaintiff's opposition to defendants' motions and for leave to amend the first amendedcomplaint and, upon renewal, denied defendants' motions in their entirety.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting in part the motion of defendants Saatchi & Saatchi Rowland, Inc. (formerly Saatchi &Saatchi Business Communications, Inc.) and CB Richard Ellis and dismissing the first cause ofaction insofar as it alleges breach of contract and the third and fourth causes of action againstdefendant Saatchi & Saatchi Rowland, Inc. (formerly Saatchi & Saatchi BusinessCommunications, Inc.) and the first amended complaint against defendant CB Richard Ellis, bygranting in part the motion of defendant Vanteon Corporation and dismissing the first amendedcomplaint against that defendant, and by denying that part of the motion of plaintiff for leave toamend the first amended complaint and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages arising out of an agreementbetween plaintiff and defendant Saatchi & Saatchi Rowland, Inc. (formerly Saatchi & SaatchiBusiness Communications, Inc.) (Saatchi) pursuant to which plaintiff subleased office spacefrom Saatchi. Plaintiff's sublease with Saatchi provided that plaintiff would have the right of firstrefusal in the event that Saatchi determined to sublease additional office space in the [*2]building designated as "Area B" in the sublease and in a floor planthat was attached to the sublease. When plaintiff learned that Saatchi, through defendant CBRichard Ellis (CBRE), its agent, was negotiating with defendant Vanteon Corporation (Vanteon)to sublease office space that included area B, plaintiff notified Saatchi and Vanteon that itintended to exercise its right of first refusal over area B. Approximately one month later, Vanteonentered into an agreement to sublease office space adjacent to area B at a rental amount that waslower than what Vanteon had been willing to pay had it been able to sublease area B. Plaintiffand Saatchi continued to negotiate for the sublease of area B but disagreed concerning, inter alia,the rental amount for the space. It appears that, as of the time that these appeals were taken, theyhad not yet reached an agreement. Several months after entering into the sublease agreement withSaatchi, Vanteon erected a demising wall to separate its office space from plaintiff's office spaceand from area B. The local building inspector informed plaintiff that, because of Vanteon'sdemising wall, plaintiff was required to create an additional means of egress from its office spacein order to comply with the building codes.
By its first amended complaint, plaintiff asserted causes of action against Saatchi for, interalia, breach of their sublease, including the implied covenant of good faith and fair dealing, andplaintiff sought an injunction directing Saatchi and Vanteon "to restore to Area B a useable andcode-compliant means of egress" that had been eliminated by the erection of the demising wall.Plaintiff also asserted a cause of action against Vanteon and CBRE for tortious interference withplaintiff's contract with Saatchi. By the order in appeal No. 1, Supreme Court granted that part ofthe motion of Vanteon and that part of the motion of Saatchi and CBRE to dismiss the firstamended complaint against Vanteon and CBRE pursuant to CPLR 3211 (a) (1) and (7) andgranted that part of the motion of Saatchi and CBRE to dismiss the first, third, and fourth causesof action against Saatchi pursuant to CPLR 3211 (a) (1) and (7), thereby leaving intact only thesecond cause of action. By the order in appeal No. 2, the court granted that part of the motion ofplaintiff for leave to renew its opposition to defendants' motions and, upon renewal, denieddefendants' motions, and the court granted that part of plaintiff's motion for leave to amend thefirst amended complaint.
Plaintiff's appeal from the order in appeal No. 1 must be dismissed inasmuch as the order inappeal No. 2 supersedes the order in appeal No. 1 (see Loafin' Tree Rest. v Pardi [appealNo. 1], 162 AD2d 985 [1990]). We conclude with respect to the order in appeal No. 2, however,that the court, upon renewal, erred in denying that part of the motion of Saatchi and CBRE todismiss the third cause of action, alleging Saatchi's breach of the sublease with plaintiff based onVanteon's construction of the demising wall, and those parts of defendants' respective motions todismiss the fourth cause of action, seeking the aforementioned injunctive relief. We thereforemodify the order accordingly.
On a motion to dismiss pursuant to CPLR 3211 (a) (1), "[t]he interpretation of anunambiguous contract is a question of law for the court, and the provisions of a contractaddressing the rights of the parties will prevail over the allegations in a complaint" (Taussig v Clipper Group, L.P., 13AD3d 166, 167 [2004], lv denied 4 NY3d 707 [2005]). Here, the court erred indetermining that the right of first refusal provision of the sublease between Saatchi and plaintiffwas ambiguous with respect to whether plaintiff was entitled to a means of egress from area Bthat extended beyond the area designated in the sublease and the attached floor plan. We agreewith Saatchi that the court erred in determining that the term approximately, as used in paragraph(1) (b) of the sublease to describe the bounds of area B, as well as the use of the termapproximate in the attached floor plan, renders the sublease ambiguous with respect to theboundaries of area B and thus permits the admission of parol evidence with respect to thoseboundaries (cf. Wintemberg v Kowal, 235 AD2d 999, 999-1000 [1997]; Start vTrudell, 155 AD2d 829, 831 [1989]; Smith v Slocum, 71 AD2d 1058 [1979]).Rather, we conclude that the use of the terms approximate [*3]orapproximately "mean[s] only a negligible deviation" (Dunbar & Sullivan Dredging Co. vState of New York, 259 App Div 440, 444 [1940]), and that such use was "intend[ed] tocover slight or unimportant inaccuracies" (Watson v City of New York, 67 App Div 573,581 [1902], affd 175 NY 475 [1903]). Thus, those causes of action concerning theconstruction of the demising wall must be dismissed, inasmuch as there is no ambiguity withrespect to the boundaries of area B and thus no issue whether plaintiff's rights thereto wereimpinged upon.
We further conclude that the court erred, upon renewal, in denying those parts of defendants'respective motions to dismiss the fifth cause of action, alleging the tortious interference byVanteon and CBRE with plaintiff's contract with Saatchi. We therefore further modify the orderaccordingly. Addressing first CBRE, we note that it was at all relevant times acting as Saatchi'sagent, and an agent may not be held liable for inducing its principal to breach a contract withanother unless the agent "does not act in good faith and commits independent torts or predatoryacts directed at another for [its own] pecuniary gain" (BIB Constr. Co. v City ofPoughkeepsie, 204 AD2d 947, 948 [1994]; see Bradbury v Cope-Schwarz, 20 AD3d 657, 659 [2005]; seealso Murtha v Yonkers Child Care Assn., 45 NY2d 913, 915 [1978]). Although plaintiffalleged that CBRE acted in bad faith, it did not allege that CBRE had committed the requisite"independent torts or predatory acts" directed at plaintiff (BIB Constr. Co., 204 AD2d at948). With respect to Vanteon, we conclude that plaintiff failed to support that cause of actionwith more than "mere speculation" (Burrowes v Combs, 25 AD3d 370, 373 [2006], lv denied 7NY3d 704 [2006]), and failed to allege that "but for" Vanteon's conduct the sublease would nothave been breached (id.; see Washington Ave. Assoc. v Euclid Equip., 229 AD2d486, 487 [1996]).
We agree with plaintiff, however, that the court, upon renewal, properly denied that part ofthe motion of Saatchi and CBRE to dismiss the first cause of action against Saatchi insofar as italleges the breach of the implied covenant of good faith and fair dealing (see Quigley vCapolongo, 53 AD2d 714, 715 [1976], affd 43 NY2d 748 [1977]; New York Tile Wholesale Corp. v ThomasFatato Realty Corp., 13 AD3d 425, 428 [2004]). We further conclude, however, that thecourt erred in denying that part of the motion with respect to the remainder of the first cause ofaction insofar as it generally alleges, without explanation, that "Saatchi breached the Sublease."We therefore further modify the order accordingly.
Finally, although the decision whether to grant leave to amend a complaint is committed tothe sound discretion of the trial court (see CPLR 3025 [b]; Edenwald Contr. Co. vCity of New York, 60 NY2d 957, 959 [1983]), we conclude that the court abused itsdiscretion in granting that part of plaintiff's motion for leave to amend the first amendedcomplaint. We therefore further modify the order accordingly. The second cause of action, whichin the first amended complaint sought specific performance from Saatchi, now seeks specificperformance from Vanteon. Vanteon, however, was not a party to the sublease between plaintiffand Saatchi, and thus Vanteon cannot be compelled to perform any duties thereunder (see generally Tikvah Realty, LLC vSchwartz, 43 AD3d 909 [2007]). Present—Hurlbutt, J.P., Martoche, Smith, Greenand Pine, JJ.