| Gladstein v Martorella |
| 2010 NY Slip Op 01732 [71 AD3d 427] |
| March 4, 2010 |
| Appellate Division, First Department |
| Jane Gladstein, Appellant, and iStar FM Loan, LLC,Intervenor, v Christopher H. Martorella, Respondent. |
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Order, Supreme Court, New York County (Louis B. York, J.), entered January 8, 2009,which granted defendant's motion to reargue, and, upon reargument, vacated its prior ordergranting plaintiff's motion for summary judgment in the principal amount of $2,000,000, andsevering her claim for attorneys' fees, denied plaintiff's motion for summary judgment, vacatedthe judgment, same court and Justice, entered April 29, 2008, and referred the matter to a specialreferee to hear and determine the meaning of the contractual phrase "shall have been contractedfor" contained in the parties' settlement agreement, unanimously reversed, on the law, with costs,plaintiff's motion for summary judgment granted, the judgment entered April 29 reinstated, theissue of attorneys' fees severed, and the matter remanded for further proceedings.Appeal from order, same court and Justice, entered May 20, 2009, which, inter alia, deniedplaintiff's motion to reargue the January 8, 2009 order, unanimously dismissed, without costs, asacademic in view of the foregoing.
The parties were partners in a real estate development company. In 2005, they decided topart ways. After extensive negotiations involving experienced counsel, they entered into asettlement agreement whereby defendant would purchase plaintiff's interest in the company.Pursuant to the agreement, half of the purchase price was payable at the closing and the balancewas due in two equal installments. Pursuant to the agreement, the first installment was due on theearlier of the date when 75% of the units in a particular development were "contracted for" or thefirst anniversary of the agreement. The second installment was due on the later of the date when75% of the units in two other projects were "contracted for" or the 18-month anniversary of theagreement.
Plaintiff commenced an action to obtain the first installment and was granted summary [*2]judgment. The decision of the court stated that the parties wererequested to settle order after a hearing to determine the amount of attorneys' fees to whichplaintiff was entitled pursuant to the agreement. Plaintiff entered a judgment before the hearingtook place and commenced collection efforts. In this action, defendant asserted a counterclaimalleging that this conduct constituted abuse of process.
In the instant action, plaintiff is seeking the second and final installment payment under theagreement, alleging that the 18-month anniversary had passed and 75% of the units in the statedprojects were either sold or leased. Defendant argues that the term "contracted for" was intendedto refer only to sale contracts, not leases, and 75% of the units have not yet been sold.
When parties set down their agreement in a clear, complete document, their writing should,as a rule, be enforced according to its terms. Evidence outside the four corners of the documentas to what was really intended but unstated or misstated is generally inadmissible to add to orvary the writing. Extrinsic and parol evidence are not admissible to create an ambiguity in awritten agreement which is complete, clear and unambiguous on its face (see W.W.W.Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).
The agreement herein is unambiguous on its face. Both sale and lease contracts may beutilized in meeting the 75% requirement. "The best evidence of what parties to a writtenagreement intend is what they say in their writing" (Greenfield v Philles Records, 98NY2d 562, 569 [2002] [internal quotation marks and citation omitted]). If the parties intended toexclude lease contracts from consideration, they made a mistake in the agreement. "An omissionor mistake in a contract does not constitute an ambiguity" (Reiss v Financial PerformanceCorp., 97 NY2d 195, 199 [2001] [internal quotation marks omitted]).
Accordingly, the court should have adhered to its original ruling granting summaryjudgment. Concur—Sweeny, J.P., Catterson, Renwick, Freedman and Abdus-Salaam, JJ.[Prior Case History: 2008 NY Slip Op 33515(U).]