| U.S. Home Corp. v Elm Farm Assoc., LLC |
| 2010 NY Slip Op 01785 [71 AD3d 667] |
| March 2, 2010 |
| Appellate Division, Second Department |
| U.S. Home Corporation et al.,Respondents-Appellants, v Elm Farm Associates, LLC, et al.,Appellant-Respondents. |
—[*1] Hocherman Tortorella & Wekstein, LLP, White Plains, N.Y. (Henry M. Hocherman ofcounsel), for respondents-appellants.
In an action, inter alia, to recover a down payment on a contract for the sale of real property,(1) the defendants appeal from an order of the Supreme Court, Dutchess County (Pagones, J.),dated October 28, 2008, (2) the defendants Steven L. Tarshis and Tarshis, Catania, Liberth,Mahon & Milligram, PLLC, appeal, as limited by the brief, from so much of an amended orderof the same court dated February 24, 2009, as denied their cross motion for summary judgmentdismissing the complaint insofar as asserted against them, the defendant Elm Farm Associates,LLC, appeals, as limited by the brief, from so much of the amended order as denied thosebranches of its cross motion which were for summary judgment dismissing the cause of actionfor attorneys' fees and costs against it, and the plaintiffs cross-appeal, as limited by their brief, ineffect, from so much of the amended order as denied those branches of their motion which werefor summary judgment on their cause of action for attorneys' fees and costs against the defendantElm Farm Associates, LLC, and on their cause of action against the defendants Steven L.Tarshis, and Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, to recover damages based onan alleged breach of a fiduciary duty, and (3) the defendant Elm Farm Associates, LLC, appealsfrom a judgment of the same court, also dated February 24, 2009, which, upon so much of theamended order as granted that branch of the plaintiffs' motion which was for summary judgmenton their cause of action to recover the down payment and as denied that branch of its crossmotion which was for summary judgment dismissing that cause of action, is in favor of theplaintiffs and against it in the principal sum of $150,000. The notice of appeal of the defendantElm Farm Associates, LLC, from so much of the amended order as granted that branch of theplaintiffs' motion which was for summary judgment on their cause of action to recover the downpayment, and denied that branch of its cross motion which was for summary judgmentdismissing that cause of action, is deemed a notice of appeal from the judgment (seeCPLR 5512 [a]).[*2]
Ordered that the appeal from the order is dismissed,without costs or disbursements, as that order was superseded by the amended order; and it isfurther,
Ordered that the amended order is modified, on the law, by deleting the provision thereofdenying that branch of the plaintiffs' motion which was for summary judgment on the cause ofaction for attorneys' fees and costs against the defendant Elm Farm Associates, LLC, andsubstituting therefor a provision granting that branch of the plaintiffs' motion; as so modified, theamended order is affirmed insofar as appealed and cross-appealed from, without costs ordisbursements; and it is further,
Ordered that the judgment is affirmed, without costs or disbursements; and it is further,
Ordered that the matter is remitted to the Supreme Court, Dutchess County, to determine theamount of attorneys' fees and costs to be awarded to the plaintiffs payable by the defendant ElmFarm Associates, LLC.
" '[W]hen parties set down their agreement in a clear, complete document, their writingshould as a rule be enforced according to its terms' " (Signature Realty, Inc. v Tallman, 2 NY3d 810, 811 [2004], quotingR/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 32 [2002]; see Goldstein v AccuScan, Inc., 2NY3d 811, 812 [2004]). The interpretation of an unambiguous contract is "the function ofthe court" (Jackson & Wheeler, Inc. vVillage of Pleasantville, 56 AD3d 723, 724 [2008]). Where an agreement is clear andunambiguous, the parties' intent "must be gleaned from the four corners of the relevantagreement" (Jackson & Wheeler, Inc. v Village of Pleasantville, 56 AD3d at 724-725).
Here, the agreement is clear and unambiguous and it can be determined from its four cornersthat the contracting parties intended the purchaser to recover the down payment upon apermissible termination of the agreement. Accordingly, the Supreme Court properly granted thatbranch of the plaintiffs' motion which was for summary judgment on its cause of action torecover the down payment. Since the purchaser was the "prevailing party" in this dispute, it wasentitled to recover against the defendant seller attorneys' fees and costs, pursuant to section 29 ofthe agreement. Thus, the Supreme Court should have granted that branch of the plaintiffs' motionwhich was for summary judgment on their cause of action against the defendant seller forattorneys' fees and costs. Accordingly, we remit the matter to the Supreme Court, DutchessCounty, for a determination of attorneys' fees and costs.
The Supreme Court properly denied that branch of the plaintiffs' motion which was forsummary judgment on their cause of action against the defendants Steven L. Tarshis and Tarshis,Catania, Liberth, Mahon & Milligram, PLLC (hereinafter together the escrow agent), to recoverdamages based on an alleged breach of a fiduciary duty, and properly denied that branch of theescrow agent's cross motion which was for summary judgment dismissing that cause of action.Pursuant to section 36 of the agreement, the contracting parties agreed, in pertinent part, to holdharmless the escrow agent except with respect to actions taken in bad faith, in willful disregardof the agreement, or involving gross negligence. The plaintiffs failed to demonstrate that theescrow agent violated its fiduciary duty, and acted in bad faith, in willful disregard of theagreement, or in gross negligence, by releasing a portion of the down payment to the defendantseller and, therefore, failed to establish their prima facie entitlement to judgment as a matter oflaw (see CPLR 3212). Likewise, the escrow agent failed to demonstrate its prima facieentitlement to judgment as a matter of law dismissing that cause of action (see CPLR3212). Rivera, J.P., Leventhal, Lott and Austin, JJ., concur.