| Friedman v Ocean Dreams, LLC |
| 2008 NY Slip Op 09351 [56 AD3d 719] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Saul Friedman, Appellant, v Ocean Dreams, LLC, et al.,Respondents. |
—[*1] Stahl & Zelmanovitz, New York, N.Y. (Joseph Zelmanovitz of counsel), forrespondents.
In an action to impose a constructive trust, for an accounting, and to recover damages for thebreach of a fiduciary duty, breach of contract, and conversion, the plaintiff appeals, as limited byhis brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), datedJune 11, 2007, as granted those branches of the defendants' motion which were for summaryjudgment dismissing the first, second, and third causes of action in the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The present controversy involves a limited liability company known as Ocean Dreams, LLC,which owns real property in Brooklyn. In essence, the plaintiff Saul Friedman claims that heowns 50% of Ocean Dreams, LLC, based upon an oral agreement with the defendant DavidWeisz and prior partnership agreements precluding Weisz from purchasing real property withouthis partners, including the plaintiff.
The Supreme Court properly granted those branches of Weisz's motion which were forsummary judgment dismissing the first, second, and third causes of action in the complaint.Weisz established that he was entitled to judgment as a matter of law by tendering documentaryevidence that contradicted Friedman's claims. This evidence showed that Friedman executed apartnership redemption agreement on October 3, 2002, which contained a merger clauseprecluding him from [*2]relying on any prior partnershipagreements, and a no-modification clause precluding him from entering into any oral agreementsregarding Ocean Dreams, LLC. At the same time, Friedman executed a general release, which,inter alia, discharged Weisz from any claims arising from their prior business dealings. Under thetraditional rules of contract law, the courts will enforce a clear and unambiguous merger clause(see AFA Protective Sys. v Lincoln Sav. Bank, 194 AD2d 509 [1993]) and a valid release(see Matter of Brooklyn Resources Recovery, 309 AD2d 931 [2003]; Chaudhry vGarvale, 262 AD2d 518 [1999]; Touloumis v Chalem, 156 AD2d 230, 232 [1989];Appel v Ford Motor Co., 111 AD2d 731, 732 [1985]).
Friedman's conclusory allegations presented feigned factual issues designed to avoid theconsequences of the defendants' documentary evidence (see Buziashvili v Ryan, 264AD2d 797 [1999]; Matter of Fisch v Aiken, 252 AD2d 556 [1998]).
Friedman's remaining contentions are without merit or need not be reached in light of ourdetermination. Prudenti, P.J., Santucci, McCarthy and Chambers, JJ., concur. [See 15Misc 3d 1146(A), 2007 NY Slip Op 51188(U).]