| Angelino v Michael Freedus, D.D.S., P.C. |
| 2010 NY Slip Op 00445 [69 AD3d 1203] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Francis J. Angelino, Appellant-Respondent, v Michael Freedus,D.D.S., P.C., et al., Respondents-Appellants. |
—[*1] Harlem Law Office, Oneonta (Richard A. Harlem of counsel), forrespondents-appellants.
McCarthy, J. Cross appeals from an order of the Supreme Court (Dowd, J.), entered April28, 2009 in Otsego County, which partially granted defendants' motion to dismiss the complaint.
Plaintiff seeks to collect alleged unpaid rents for the years 2002 through 2007 fromdefendant Michael Freedus, D.D.S., P.C. (hereinafter defendant P.C.), plaintiff's former lessee.Plaintiff also alleges tortious interference with the lease contract and seeks punitive damagesagainst defendant P.C. and its principal, defendant Michael Freedus. Plaintiff sold the building inwhich defendant P.C. leases space. The purchase and sale agreement reserved plaintiff's right tocollect certain rents from defendant P.C. At the closing, however, plaintiff delivered to thepurchaser an assignment of leases and rents which purported to assign to the purchaser'smanagement company all of plaintiff's right, title and interest to rents due under plaintiff's leasewith defendant P.C., including the right to enforce rents already due.
Defendants moved to dismiss the complaint, alleging a defense based upon documentaryevidence, plaintiff's lack of capacity to sue on the lease, and failure to state a cause of action(see CPLR 3211 [a] [1], [3], [7]). In essence, defendants argued that the purchase andsale agreement, at most, reserved plaintiff's right to collect only a portion of the rents thatplaintiff claims and, in any event, the assignment of leases and rents conveyed to the purchaserall rights to collect rent that plaintiff may have reserved under the purchase and sale agreement.Supreme Court dismissed plaintiff's claims for rents due for 2002 through 2006, but denieddefendants' motion with respect to rents due for 2007. Supreme Court also dismissed the claimsfor tortious interference with contract and punitive damages. The parties cross-appeal and weaffirm.
Supreme Court correctly determined that the complaint fails to state a cause of action fortortious interference with contract and alleges no basis for an award of punitive damages. Thecomplaint alleges nothing more than defendants' failure to pay, or submit lawful objections to,plaintiff's claim for additional rent. "Plaintiff has failed to allege or demonstrate the creation of arelationship or duty between [himself] and defendant[s] separate from this contractual obligation;therefore, no independent tort claim lies" (Alexander v GEICO Ins. Co., 35 AD3d 989, 990 [2006] [citationsomitted]). Moreover, a claim for tortious interference with contract "envision[s] acts by a thirdparty" (Burdett Radiology Consultants v Samaritan Hosp., 158 AD2d 132, 136 [1990])and Freedus, as principal, and defendant P.C. "are not third parties unrelated to the contract"(id.; see Werner v Katal Country Club, 234 AD2d 659, 662 [1996]; Bradfordv Weber, 138 AD2d 860, 862 [1988]). As plaintiff alleges no tort independent of defendants'obligations under the lease, his claim for punitive damages was also properly dismissed (seeAlexander v GEICO Ins. Co., 35 AD3d at 990).
The complaint, on its face, clearly alleges causes of action for the unpaid rent, and so we turnto the defense based on documentary evidence. " 'To succeed on a motion under CPLR 3211 (a)(1), a defendant must show that the documentary evidence upon which the motion is predicatedresolves all factual issues as a matter of law and definitively disposes of the plaintiff's claim' "(Adamkiewicz v Lansing, 288 AD2d 531, 532 [2001], quoting Unadilla Silo Co. vErnst & Young, 234 AD2d 754, 754 [1996]; see Vanderminden v Vanderminden,226 AD2d 1037, 1039 [1996]; Capital Wireless Corp. v Deloitte & Touche, 216 AD2d663, 665 [1995]). Initially, we note that the purchase and sale agreement and the assignment ofleases and rents, although executed on different dates, appear to be the result of negotiationsregarding a single transaction between plaintiff and the purchaser, and therefore constitute asingle contract (see Bradford v Weber, 138 AD2d at 862). Defendants' motion to dismisstherefore hinges on whether these documents, read together (see Nau v Vulcan Rail &Constr. Co., 286 NY 188, 197 [1941]; Evans Prods. Co. v Decker, 52 AD2d 991,992 [1976]), and other evidence submitted on the motion, establish as a matter of law thatplaintiff has relinquished his right to collect rents from defendants.
The purchase and sale agreement obligated plaintiff to deliver possession of the property tothe purchaser subject to, among other things, defendant P.C.'s lease, and specifically reservedplaintiff's right to collect rent "due for 2007 and payable in 2008." The purchase and saleagreement also contained the purchaser's express acknowledgment of plaintiff's "ongoingdisagreements" with defendants regarding "unpaid rents by [defendants] during the year 2007"and plaintiff's right to sue defendants to collect the unpaid rents. Defendants argued, andSupreme Court held, that this language limited plaintiff's reservation of rights to the collection ofrents for the year 2007. We agree. Although the record does not indicate that defendants'obligation for any unpaid rents for the years 2002 through 2006 was ever discharged, plaintiff'sreservation of rights is limited by its plain language to rents due for the year 2007. " 'The writtenterms and conditions of a contract define the rights and obligations of the parties where thelanguage employed is clear and unambiguous' " (Bauersfeld v Board of Educ. of Morrisville-Eaton Cent. School Dist.,46 AD3d 1003, 1005 [2007], lv denied 10 NY3d 704 [2008], quoting DierkesTransp. v Germantown Cent. School Dist., 295 AD2d 683, 684 [2002]). " '[A] court isduty-bound to adjudicate the parties' rights according to unambiguous provisions and give wordsand phrases employed their plain meaning' " (Bauersfeld v Board of Educ. ofMorrisville-Eaton Cent. School Dist., 46 AD3d at 1005, quoting Estate of Hatch vNYCO Mins., 245 AD2d 746, 747 [1997]). "A contract is ambiguous if the language usedlacks a definite and precise meaning, and there is a reasonable basis for a difference of opinion"(Pozament Corp. v AES Westover,LLC, 27 AD3d 1000, 1001 [2006] [citation omitted]). "It is only when language used ina conveyance is susceptible of more than one interpretation that the courts will look intosurrounding circumstances, the situation of the parties, etc." (Webster v Ragona, 7 AD3d 850, 853-854 [2004] [internalquotation marks and citations omitted]). Here, the language employed in the purchase and saleagreement explicitly references rents for the year 2007 only, and is simply not susceptible toalternative interpretations (see Payne v Enable Software, 229 AD2d 880, 882 [1996];Beltrone Constr. Co. v State of New York, 189 AD2d 963, 965-966 [1993], lvdenied 81 NY2d 709 [1993]).
Apparently contradicting the express language of the purchase and sale agreement, theassignment of leases and rents assigned to the purchaser's management company all of plaintiff'sright, title and interest in the lease, including the right to enforce rents "due, or to become due."Other documentary evidence perpetuated this contradiction. The statement of sale reconciled thepayments and credits due at closing, and contained the notation: "Additional rents to be collectedby seller post closing per contract." Plaintiff's affidavit explains that the assignment of leases andrents was provided only to enable the purchaser to obtain title insurance and that plaintiff had"reserved his rights" to collect past due rents. The purchaser submitted affidavits, in support ofdefendants' motion, admitting that the purchaser had intended to seek financing to purchase theproperty, but ultimately entered into a cash transaction, thereby eliminating the need for titleinsurance. The purchaser states that by delivering the assignment of leases and rents, plaintiffassigned his rights to collect past due rents to the purchaser. We note, however, that thepurchaser offers no explanation as to why plaintiff did so while expressly reserving those samerights in the purchase and sale agreement. Given the factual contradictions in the affidavits andthe internal ambiguity of the contract documents, it is not possible to resolve, in the context ofthis CPLR 3211 motion, plaintiff's right to sue for the 2007 rents, and Supreme Court thereforproperly denied defendants' motion with respect to the 2007 rents only.
Peters, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that order is affirmed, withoutcosts.