| Urstadt Biddle Props., Inc. v Excelsior Realty Corp. |
| 2009 NY Slip Op 06537 [65 AD3d 1135] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Urstadt Biddle Properties, Inc., Respondent, v ExcelsiorRealty Corp., Also Known as Excelsior Realty, Inc., Doing Business as Party Plus Warehouse, etal., Appellants. |
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In an action, inter alia, to recover damages for breach of contract, the defendants appeal froma judgment of the Supreme Court, Westchester County (Lefkowitz, J.), entered October 17,2007, which, upon an order of the same court entered September 18, 2007, granting the plaintiff'smotion for summary judgment on the complaint insofar as asserted against the defendantThomas Yewdell, and denying their cross motion pursuant to CPLR 3212 (f) to compeldiscovery, is in favor of the plaintiff and against the defendant Thomas Yewdell in the principalsum of $361,846.30, plus interest in the sum of $83,066.04.
Ordered that the appeal by the defendant Excelsior Realty Corp., also known as ExcelsiorRealty Inc., doing business as Party Plus Warehouse, is dismissed, as it is not aggrieved by thejudgment (see CPLR 5511); and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The defendant Thomas Yewdell executed a guaranty of a lease (hereinafter the guaranty)obligating him personally to pay rent, "additional rent," and other charges payable under a leasebetween the plaintiff and the defendant Excelsior Realty Corp., also known as Excelsior RealtyInc., doing business as Party Plus Warehouse (hereinafter Excelsior), for commercial spacelocated in Ossining, New York (hereinafter the premises). Yewdell was the president ofExcelsior, which operated a party goods retail store at the premises.
The plaintiff made a prima facie showing of its entitlement to judgment as a matter of lawagainst Yewdell, based upon the guaranty. The plaintiff demonstrated that Yewdellunconditionally guaranteed the payment of Excelsior's obligations thereunder, and that Yewdelldefaulted on his obligations under the guaranty (see North Fork Bank v ABC MerchantServs., Inc., [*2]49 AD3d 701, 701 [2008]; Suffolk County Natl. Bank v ColumbiaTelecom. Group, Inc., 38 AD3d 644, 645 [2007]; Sterling Vision v Joel, 279AD2d 568, 568-569 [2001]; North Fork Bank v Rosen, 225 AD2d 598, 598 [1996]). Inopposition to the motion, Yewdell failed to raise a triable issue of fact (see North Fork Bankv ABC Merchant Servs., Inc., 49 AD3d at 701; North Fork Bank v Rosen, 225AD2d at 598). Accordingly, the Supreme Court properly granted the plaintiff's motion forsummary judgment on the complaint insofar as asserted against Yewdell.
Furthermore, the cross motion to compel discovery pursuant to CPLR 3212 (f) was properlydenied. As relevant here, in order to obtain that relief, Yewdell was required to show that factsessential to his claim of fraudulent inducement existed but could not then be stated (seeCPLR 3212 [f]). He failed to make that showing. The elements of a cause of action allegingfraud in the inducement are representation of a material existing fact, falsity, scienter, reliance,and injury (see Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407[1958]; Urquhart v Philbor Motors,Inc., 9 AD3d 458, 458-459 [2004]). Yewdell's affidavit was insufficient to demonstratethat facts existed establishing his or Excelsior's reliance on the plaintiff's allegedmisrepresentations regarding the amount of the real estate taxes which Excelsior would beobligated to pay under the lease. The zoning status of the property and the tax assessment werematters of public record. "Where a party has the means to discover the true nature of thetransaction by the exercise of ordinary intelligence, and fails to make use of those means, hecannot claim justifiable reliance on [his opponent's] misrepresentations" (Stuart Silver Assoc.v Baco Dev. Corp., 245 AD2d 96, 98-99 [1997]).
Yewdell's affidavit also was insufficient to demonstrate that facts existed establishing his orExcelsior's reliance on the plaintiff's alleged misrepresentations regarding the amounts of thecommon area maintenance charges (hereinafter CAM charges) for which Excelsior would beliable under the lease. "Where . . . there is a 'meaningful' conflict between anexpress provision in a written contract and a prior alleged oral representation, the conflictnegates a claim of reasonable reliance upon the oral representation" (Stone v Schulz, 231AD2d 707, 707-708 [1996]; see Group88, Inc. v AGA Capital NY, Inc., 59 AD3d 493 [2009]; McMorrow v Dime Sav. Bank ofWilliamsburgh, 48 AD3d 646, 648 [2008]; Old Clinton Corp. v 502 Old Country Rd., 5 AD3d 363, 364[2004]). The lease expressly provided that the plaintiff had the right to make improvements inthe common areas of the property, that the CAM charges included "all costs and expenses ofevery kind and nature incurred by [the plaintiff] in repairing . . . and maintainingthe Common Areas and all improvements thereon," and that Excelsior was responsible for itsproportionate share of such charges. Therefore, Yewdell's claim that the "initial estimate" of theCAM charges as set forth in the lease constituted a misrepresentation because it materiallyunderestimated such charges is unavailing.
The Supreme Court properly awarded interest on the judgment (see CPLR 5003,5004).
Yewdell's remaining contentions have been rendered academic, are without merit, or areimproperly raised for the first time on appeal. Spolzino, J.P., Dillon, Miller and Dickerson, JJ.,concur.