| FG Harriman Commons, LLC v FBG Owners, LLC |
| 2010 NY Slip Op 06075 [75 AD3d 527] |
| July 13, 2010 |
| Appellate Division, Second Department |
| FG Harriman Commons, LLC, et al., Appellants, v FBGOwners, LLC, et al., Respondents. |
—[*1] Cozen O'Connor, New York, N.Y. (Kenneth G. Roberts and James L. Simpson of counsel),for respondents.
In an action to recover damages for breach of contract, the plaintiffs appeal from an order ofthe Supreme Court, Westchester County (Rudolph, J.), entered January 29, 2009, which grantedthe defendants' motion, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (1) basedupon documentary evidence.
Ordered that the order is affirmed, with costs.
On December 17, 1997, the plaintiff Abraham Goldberger, nonparty Alex Goldberger, thedefendant Jay Furman, and nonparty Richard Birdoff entered into a letter agreement establishingseveral property companies and one master company to purchase, develop, and sell real property,and, pursuant to that letter agreement, Furman and Birdoff (hereinafter together the FB Group)had the unlimited power and authority to sell all or any part of certain real property on suchterms as they determined if they first notified Alex Goldberger and Abraham Goldberger(hereinafter together the Goldbergers) of the terms and conditions of the proposed sale. TheGoldbergers then would have 60 days to elect whether to purchase the property on such terms.
On January 22, 2007, Furman sent a letter to the Goldbergers informing them that he hadexecuted a nonbinding letter of intent to sell certain real properties to Vornado Realty Trust(hereinafter Vornado), and he included a proposed contract of sale for the Goldbergers toexecute if they desired to purchase the properties. Ultimately, after negotiations, uponassignment of Abraham Goldberger's right to purchase the properties to FG Harriman Commons,LLC (hereinafter FG), FG executed a contract of sale for the properties on May 3, 2007, and, bya separate settlement and release also executed on that day, reserved the right to seek judicialreview of the terms that the FB Group had included in the contract.
A motion to dismiss pursuant to CPLR 3211 (a) (1) on the ground that the action is barred bydocumentary evidence "may be appropriately granted only where the documentary evidenceutterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter oflaw" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). The terms ofthe letter agreement, a [*2]binding contract, permitted the FBGroup to offer the property to the Goldbergers' assignee, FG, on terms not materially lessfavorable than the terms negotiated with Vornado. The documentary evidence conclusivelyestablished, as a matter of law, that the FB Group did not breach the terms of the letteragreement.
The plaintiffs' remaining contentions are not properly before this Court. Fisher, J.P.,Leventhal, Belen and Sgroi, JJ., concur.