| Mazur Bros. Realty, LLC v State of New York |
| 2009 NY Slip Op 00657 [59 AD3d 401] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Mazur Brothers Realty, LLC, Appellant, v State of NewYork, Respondent. (Claim No. 112660.) |
—[*1] Andrew M. Cuomo, Attorney General, Albany, N.Y. (Peter H. Schiff and Michael S. Buskusof counsel), for respondent.
In a claim, inter alia, to recover damages for breach of contract, the claimant appeals, aslimited by its brief, from so much of an order of the Court of Claims (Scuccimarra, J.), datedMay 15, 2007, as granted that branch of the defendant's motion which was pursuant to CPLR3211 (a) (1), in effect, to dismiss that portion of the claim which was to recover damages forbreach of contract, and denied its cross motion for summary judgment on the claim.
Ordered that the order is affirmed insofar as appealed from, with costs.
On April 4, 2006 the defendant State of New York acquired, by eminent domain, realproperty owned by the claimant, Mazur Brothers Realty, LLC. Prior to the taking, the State madepre-vesting offers to the claimant for the appropriation, pursuant to EDPL 303. The parties thenentered into a binding agreement of adjustment, wherein the claimant accepted the State's offeredcompensation as payment in full for the appropriation (see EDPL 304 [A] [2]; ERARealty v State of New York, 281 AD2d 388 [2001]). Following the appropriation, theclaimant filed this claim, inter alia, to recover damages for breach of contract, alleging that thedefendant had failed to pay the compensation agreed upon in the agreement of adjustment. Thedefendant moved, among other things, pursuant to CPLR 3211 (a) (1) to dismiss that portion ofthe claim which was to recover damages for breach of contract. The claimant cross-moved forsummary judgment on the claim.[*2]
A party seeking dismissal on the ground that its defenseis founded upon documentary evidence pursuant to CPLR 3211 (a) (1) has the burden ofsubmitting documentary evidence that " 'resolves all factual issues as a matter of law, andconclusively disposes of the plaintiff's claim' " (Sullivan v State of New York, 34 AD3d 443, 445 [2006], quotingNevin v Laclede Professional Prods., 273 AD2d 453 [2000]; see Goshen v MutualLife Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Here, the agreement of adjustment, whichwas annexed to the claim, in conjunction with the other documentary evidence submitted,established that the claimant failed to meet a condition precedent required by that agreement (cf. Sullivan v State of New York, 34AD3d 443, 445 [2006]). Therefore, the court properly granted that branch of the defendant'smotion which was to dismiss that portion of the claim which was to recover damages for breachof contract. Likewise, the court properly denied the claimant's cross motion for summaryjudgment as it failed to make a prima facie showing of its entitlement to judgment as a matter oflaw (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The claimant's remaining contentions are without merit. Rivera, J.P., Angiolillo, Eng andBelen, JJ., concur.