| Fernandez v Price |
| 2009 NY Slip Op 04376 [63 AD3d 672] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Antonio Oladeinde Fernandez,Appellant-Respondent, v Sandra Inett Price, Also Known as Aduke Fernandez,Respondent-Appellant. |
—[*1] Robert S. Michaels, P.C., New York, N.Y. (Emily R. Rubin and Robert N. Fass of counsel),for respondent-appellant.
In an action, inter alia, for the partition of real property, the plaintiff appeals, as limited byhis brief, (1) from so much of a judgment of the Supreme Court, Westchester County (Colabella,J.), dated January 3, 2008, as, upon an order of the same court entered May 10, 2007, amongother things, appointing a receiver to sell certain real property upon the parties' consent and,upon a decision of the same court dated October 2, 2007, made after a nonjury trial, in effect,appointed a receiver and adjudged that the term "expenses" in the parties' stipulation ofsettlement dated August 22, 2003, is construed to mean "all costs attendant to the propertythrough its sale," and (2) from so much of an order of the same court entered June 12, 2008, as,sua sponte, resettled so much of the order entered May 10, 2007, as continued the receiver'sauthority to act "until final judgment or further order of the court," by, in effect, deleting theprovision "until final judgment or," and the defendant cross-appeals, as limited by her brief, fromso much of the same judgment as dismissed, as academic, so much of her first counterclaim assought specific performance of the stipulation of settlement, and dismissed so much of the firstcounterclaim as sought to recover damages for breach of the stipulation of settlement.
Ordered that the appeal from so much of the judgment as, upon the order entered May 10,2007, in effect, appointed a receiver to sell certain real property upon the parties' consent isdismissed, without costs or disbursements, as the plaintiff is not aggrieved thereby (seeCPLR 5511); and it is further,[*2]
Ordered that the appeal from so much of the orderentered June 12, 2008, as, sua sponte, resettled so much of the order entered May 10, 2007, ascontinued the receiver's authority to act "until final judgment or further order of the court" by, ineffect, deleting the provision "until final judgment or" is dismissed, without costs ordisbursements, as that part of the order is not appealable as of right, and we decline to grantleave to appeal (see CPLR 5701); and it is further,
Ordered that the judgment is modified, on the facts, by deleting the provision thereofadjudging that the term "expenses" in the parties' stipulation of settlement dated August 22,2003, is construed to mean "all costs attendant to the property through its sale" and substituting aprovision therefor adjudging that the term "expenses" is construed to mean "expenses of thesale"; as so modified, the judgment is affirmed insofar as reviewed, without costs ordisbursements.
The plaintiff and the defendant, although never legally married, had an approximately20-year relationship commencing in 1982, during which time they had two daughters. Whileliving together, the parties acquired a very large waterfront property at The Peninsula, PremiumPoint, in Mamaroneck (hereinafter Premium Point).
In settlement of a quasi-matrimonial action subsequently instituted by the defendant againstthe plaintiff in Scotland, the parties entered into a settlement agreement concerning various realproperties and personal property they acquired. Among other provisions, the settlementagreement provided that "[t]he Property in New York known as The Premium Point will be soldand the proceed[s] divide[d] equally between the parties and expenses will be deducted from [theplaintiff's] fifty percent." The plaintiff testified that during the negotiations of that provision ofthe settlement agreement, he forwarded a draft of the settlement to the defendant. He alsotestified that the version of the draft that he sent to the defendant did not mention expenses. Thedefendant testified that she added certain handwritten language that "taxes, expenses, upkeeprelated to said property are deducted from 50% of . . . [the plaintiff's] share." Thefinal typewritten version, which became the settlement agreement, only included the term"expenses."
Shortly after the parties settled their action in Scotland, the plaintiff commenced the instantaction against the defendant for, inter alia, partition of Premium Point. The defendantcounterclaimed, among other things, to recover damages for breach of the settlement based onthe plaintiff's alleged failure to list and sell Premium Point. The defendant also counterclaimedfor specific performance of the settlement agreement. The plaintiff discontinued his action andthe matter proceeded to a nonjury trial solely on the defendant's counterclaims.
During the nonjury trial, the defendant moved for the appointment of a temporary receiverpursuant to CPLR 6401 in order to facilitate the sale of Premium Point, given the parties'absence from the United States. The plaintiff stated that he would agree to the appointmentprovided certain conditions were met concerning the selection of a real estate broker andexclusion of a certain person from the premises. In an order entered May 10, 2007, the courtappointed a receiver, stating that the parties had agreed to the appointment of a receiver. Theorder made the appointment of a receiver subject to the conditions the plaintiff requested andauthorized the receiver to "continue in his duties as Receiver until final judgment or furtherOrder of the Court."
At the conclusion of the nonjury trial, the Supreme Court issued a decision dated October 2,2007, finding that the term "expenses," as used in the agreement, was ambiguous. Looking at theextrinsic evidence and construing the settlement agreement against the plaintiff as its [*3]drafter, the court determined that "expenses" meant "all costsattendant to the property through the sale" and not, as the plaintiff suggested, only thoseexpenses associated with the sale of the property. In addition, the Supreme Court dismissed thedefendant's counterclaim to recover damages for breach of the settlement agreement and forspecific performance of the settlement agreement, reasoning, inter alia, that that claim had beenrendered academic by the consensual appointment of the receiver.
Following the entry of the judgment, the receiver informed the Supreme Court and theparties that he had obtained a buyer for Premium Point and submitted a proposed contract ofsale. The plaintiff objected to the receiver's continued authority to act on the ground that thereceivership terminated with the entry of the judgment. In an order entered June 12, 2008, thecourt approved the contract of sale and resettled the order entered May 10, 2007, by, in effect,deleting the provision "until final judgment or" so that the receiver could continue to act "untilfurther order of the court." We modify.
"Upon review of a determination rendered after a nonjury trial, this Court's authority 'is asbroad as that of the trial court,' and this Court 'may render the judgment it finds warranted by thefacts, taking into account in a close case the fact that the trial judge had the advantage of seeingand hearing the witnesses' " (PKGAssoc., Inc. v Mile Dev. Corp., 59 AD3d 693 [2009], quoting Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; see Perfect Crown Vic, Inc. v DouceHacking Corp., 56 AD3d 448 [2008]; Coliseum Towers Assoc. v County of Nassau, 2 AD3d 562, 564[2003]). When interpreting a contract, the construction arrived at should give fair meaning to allof the language employed by the parties, to reach a practical interpretation of the parties'expressions so that their reasonable expectations will be realized (see W.W.W. Assoc. vGiancontieri, 77 NY2d 157, 162 [1990]; McCabe v Witteveen, 34 AD3d 652, 654 [2006]). The terms of acontract are clear and unambiguous when the language used has a definite and precise meaning,unattended by danger of misconception in the purport of the agreement itself, and concerningwhich there is no reasonable basis for a difference of opinion (see Breed v Insurance Co. ofN. Am., 46 NY2d 351, 355 [1978]; Broad St., LLC v Gulf Ins. Co., 37 AD3d 126, 131 [2006]).Conversely, contract language is ambiguous when it is "reasonably susceptible of more than oneinterpretation," and extrinsic or parol evidence may be then permitted to determine the parties'intent as to the meaning of that language (Chimart Assoc. v Paul, 66 NY2d 570, 572-573[1986]; see Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256, 267[1990]; Vuono v Interpharm Holdings,Inc., 55 AD3d 825, 826 [2008]).
Applying these principles to the matter at bar, the trial court correctly concluded that theterm "expenses" as used in the parties' settlement agreement was ambiguous (cf. Goldspinnerv Goldspinner, 52 AD2d 837 [1976]). However, the trial court erred in concluding that theterm "expenses" covered "all costs attendant to the property through sale." To the contrary, theextrinsic and parol evidence, including the fact that "expenses" was included in the settlementagreement without the addition of "taxes" and "upkeep" as the defendant suggested, leads us toconclude that "expenses" means only those costs associated with the sale of Premium Point. Thedefendant was the one to supply the term "expenses," and she contributed to the selection of thelanguage used in the settlement (seeColiseum Towers Assoc. v County of Nassau, 2 AD3d 562, 565 [2003]; cf. 67 WallSt. Co. v Franklin Natl. Bank, 37 NY2d 245, 249 [1975]). Moreover, the axiom "contraproferentum," which advises that any ambiguity in a document is resolved against its drafter, is arule of construction that should be employed only as a last resort (see Topor v Erie Ins. Co., 28 AD3d1199, 1200 [2006]; Rottkamp v Eger, 74 Misc 2d 858, 864 [1973]; Restatement[Second] of Contracts § 206, Comment a).[*4]
To the extent that the defendant contends that the trialcourt should not have dismissed, as academic, that part of her counterclaim which soughtspecific performance, her contention is without merit in light of the appointment of the receiverto sell the property. Further, the trial court properly dismissed that part of the defendant'scounterclaim which sought damages for breach of contract. The defendant failed to prove thatshe sustained any damages from any purported delay of the sale of the property, nor wereconsequential damages foreseeable or within the contemplation of the parties (see Bi-Economy Mkt., Inc. v HarleysvilleIns. Co. of N.Y., 10 NY3d 187, 192-193 [2008]; Cohn v Mezzacappa Bros., 155AD2d 506 [1989]; Freidus v Eisenberg, 123 AD2d 174, 180 [1986], affd 71NY2d 981 [1988]).
The parties' remaining contentions are without merit. Spolzino, J.P., Santucci, Florio andBalkin, JJ., concur.