| C&D Dev., Inc. v Sea Breeze Dev., LLC |
| 2009 NY Slip Op 01601 [60 AD3d 610] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 6—C&D Development, Inc., Appellant, v SeaBreeze Development, LLC, et al., Respondents, et al., Defendants. |
—[*1] Shapiro & Shapiro, LLP, Brooklyn, N.Y. (Alan Weiss of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Kings County (Demarest, J.), dated August 23, 2007, whichdenied its motion for summary judgment on its third cause of action alleging breach of contractagainst the defendant Sea Breeze Development, LLC, and granted the cross motion of thedefendants Sea Breeze Development, LLC, Sea Breeze Jewish Center, and Igor Fleyshmakherfor summary judgment dismissing the complaint insofar as asserted against them.[*2]
Ordered that the order is modified, on the law, bydeleting the provisions thereof denying the plaintiff's motion for summary judgment on its thirdcause of action alleging breach of contract against the defendant Sea Breeze Development, LLC,and granting that branch of the cross motion of the defendants Sea Breeze Development, LLC,Sea Breeze Jewish Center, and Igor Fleyshmakher which was to dismiss that cause of action andsubstituting therefor provisions granting the plaintiff's motion and awarding the plaintiff theprincipal sum of $400,000 on its third cause of action alleging breach of contract against thedefendant Sea Breeze Development, LLC, and denying that branch of the cross motion of thedefendants Sea Breeze Development, LLC, Sea Breeze Jewish Center, and Igor Fleyshmakherwhich was to dismiss the third cause of action; as so modified, the order is affirmed, with coststo the plaintiff payable by the defendant Sea Breeze Development, LLC.
The plaintiff's third cause of action was asserted solely against the defendant Sea BreezeDevelopment, LLC (hereinafter Sea Breeze), and alleged that Sea Breeze breached a contract itentered into with the plaintiff pursuant to which it was to pay the plaintiff the sum of $400,000 inexchange for the plaintiff's discontinuance of an earlier action it commenced in the SupremeCourt, Kings County, against the defendant Sea Breeze Jewish Center (hereinafter SBJC). Insupport of its motion for summary judgment on that cause of action, the plaintiff made a primafacie showing of entitlement to judgment as a matter of law (see generally Alvarez vProspect Hosp., 68 NY2d 320 [1986]). The plaintiff had a good faith belief that it had anenforceable contract to purchase the development rights from SBJC (see Church of God ofProspect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, 716 [1980];cf. Catholic Foreign Mission Socy. of Am. [Inc.] v Oussani, 215 NY 1, 6-7 [1915]). Inopposition thereto, the defendants failed to raise a triable issue of fact. Contrary to theircontention, the plaintiff's forbearance from pursuing its earlier action against SBJC constitutedadequate consideration for the contract sued upon in the instant case (see Denburg v ParkerChapin Flattau & Klimpl, 82 NY2d 375, 383 [1993]; White v Hoyt, 73 NY 505,514-515 [1878]; Kevin Spence & Sonsv Boar's Head Provisions Co., 5 AD3d 352, 353 [2004]; Admae Enters. vSmith, 222 AD2d 471, 472 [1995]; Nolfi Masonry Corp. v Lasker-Goldman Corp.,160 AD2d 186, 187 [1990]; Joab Commercial Laundries v Reeder, 159 AD2d 489,490-491 [1990]).
Accordingly, the Supreme Court should have granted the plaintiff's motion for summaryjudgment on its third cause of action alleging breach of contract against Sea Breeze, and awardedthe plaintiff the principal sum of $400,000, and should have denied that branch of the crossmotion of the defendants Sea Breeze, SBJC, and Igor [*3]Fleyshmakher which was for summary judgment dismissing thethird cause of action.
The plaintiff's remaining contentions are without merit. Skelos, J.P., Ritter, Florio andMiller, JJ., concur.