| F.W.J. Realty Corp. v County of Suffolk |
| 2010 NY Slip Op 04334 [73 AD3d 977] |
| May 18, 2010 |
| Appellate Division, Second Department |
| F.W.J. Realty Corp., Respondent, v County of Suffolk etal., Appellants. |
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In an action for specific performance and to recover damages for breach of contract, thedefendants appeal from an order of the Supreme Court, Suffolk County (Weber, J.), datedOctober 9, 2008, which denied their motion pursuant to CPLR 3211 (a) (1), (5) and (7) todismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint, and substituting therefor a provision granting that branch of the motion; as somodified, the order is affirmed, with costs to the defendants.
On April 20, 2004, the Suffolk County Legislature (hereinafter the Legislature) adoptedresolution No. 431-2004, authorizing the defendant Suffolk County Department of Planning toacquire certain properties, including a vacant commercial building owned by the plaintiff, in thename of the defendant County of Suffolk (hereinafter the County). The resolution indicated thatthe properties were to be acquired in connection with a highway improvement project.
In a letter to the plaintiff dated June 1, 2006, the defendant Suffolk County Department ofPublic Works (hereinafter the DPW) indicated that the County was making a "pre-vesting" offerto the plaintiff, pursuant to EDPL 303. In a letter to the DPW dated June 23, 2006, the plaintiff'sattorney, on the plaintiff's behalf, accepted that offer as payment in full for the plaintiff's claim.
On March 6, 2007, the Legislature adopted resolution No. 228-2007, deleting the plaintiff'sbuilding from the project plan. The resolution indicated that after further "engineering review,"the DPW determined that the acquisition of that building was no longer necessary. By letterdated May 2, 2007, the County informed the plaintiff that its property was no longer subject tocondemnation. Subsequently, the plaintiff commenced this action against the defendants,asserting causes of action for specific performance and to recover damages for breach ofcontract.
Prior to interposing an answer, the defendants moved pursuant to CPLR 3211 (a) (1), (5) and(7) to dismiss the complaint. In the order appealed from, the Supreme Court denied the [*2]defendants' motion. We modify.
EDPL 304 (A) (4) provides, in relevant part, that "upon the acceptance of" a prevestingoffer, "the condemnor shall enter into an agreement or stipulation with the condemnee providingfor payment pursuant to such agreement, either as payment in full or as an advance payment." Acondemnee's acceptance of a pre-vesting offer does not create a contract for the sale of thecondemnee's building or that building's fixtures (see Garrison v City of New York, 88US 196, 203-204 [1875]; Ro Jo Lo Partners v State of New York, 226 AD2d 896,896-897 [1996]).
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a causeof action, the court must afford the complaint a liberal construction, accept the allegations of thecomplaint as true, accord the plaintiff the benefit of every favorable inference, and determineonly whether the facts as alleged fit within any cognizable legal theory (see Leon vMartinez, 84 NY2d 83, 87 [1994]). To succeed on a cause of action for specific performanceor to recover damages for breach of contract, a plaintiff must establish, inter alia, the "formationof a contract" (Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [2009]). Here,however, the plaintiff's allegation that the acceptance of the prevesting offer gave rise to acontract for the sale of the plaintiff's building and that building's fixtures, made in support of theplaintiff's causes of action for specific performance and to recover damages for breach ofcontract, is a bare legal conclusion, and as such, is neither presumed to be true, nor accordedevery favorable inference (seeBreytman v Olinville Realty, LLC, 54 AD3d 703, 704 [2008]). Since that legalconclusion is incorrect, the complaint fails to state a cause of action, and the Supreme Courtshould have granted that branch of the defendants' motion which was pursuant to CPLR 3211 (a)(7) to dismiss the complaint.
The defendants' remaining contentions are without merit. Covello, J.P., Miller, Dickersonand Belen, JJ., concur.