| Carr v Birnbaum |
| 2010 NY Slip Op 06206 [75 AD3d 972] |
| July 22, 2010 |
| Appellate Division, Third Department |
| Howard Carr et al., Appellants-Respondents, v Jay Birnbaum et al.,Respondents-Appellants. |
—[*1] Englert, Coffey, McHugh & Fantauzzi, Schenectady (Peter V. Coffey of counsel), forrespondents-appellants.
Stein, J. Cross appeals from a judgment of the Supreme Court (Egan Jr., J.), entered March27, 2009 in Albany County, upon a decision of the court partially in favor of defendants.
In 1995, plaintiff Howard Carr sought financial assistance from defendant Jay Birnbaum inconnection with a real estate development project that Carr had commenced the year before.Birnbaum[FN1]agreed to provide financing pursuant to the terms of a development agreement signed by Carr,individually, and as president of plaintiff Howard Group, LLC (hereinafter referred to asHoward) and by Birnbaum. As relevant here, that agreement specified that Birnbaum would taketitle to the real property, hire Howard to develop and manage an 11,680-square-foot officebuilding being constructed on the property, and pay Howard "a fee of $102,000 for thedevelopment and leasing of the full 11,680" square feet. A separate provision granted Carr apersonal option to purchase 50% of the property within five years after Birnbaum had acquiredit. [*2]However, pursuant to the agreement, if Carr notifiedBirnbaum that he did not intend to exercise his option, "Birnbaum [would] pay [Howard]$102,000" (less certain payments made, if any).
In October 2002, Carr contracted, through an entity owned by him, to purchase 100% of theproperty from Birnbaum, and a $102,000 credit against the total sale price was included in theproposed closing statement.[FN2]However, the sale was not consummated due to a dispute regarding whether unpaid managementfees—purportedly owed to plaintiff Howard Group Management Company, Inc. pursuantto a separate agreement—should also be credited against the purchase price. Shortlythereafter, disputes arose regarding Howard's development and management of the property andBirnbaum terminated Howard's and Carr's services. In 2006, plaintiffs commenced this actionalleging breach of contract and unjust enrichment stemming from defendants' failure to pay the$102,000 called for in the development agreement and the contested management fees.Following a nonjury trial, Supreme Court ruled in favor of plaintiffs with regard to themanagement fees, but dismissed that portion of the complaint seeking $102,000. This appeal byplaintiffs ensued.[FN3]
We affirm. In our view, the plain and unambiguous terms of the development agreemententitled plaintiffs to payment of the sum of $102,000 either upon the "leasing of the full" officespace or "[i]f Carr notifie[d] Birnbaum that he intends not to exercise his option to purchase the50% available to him." We find both contingencies to be conditions precedent to plaintiffs'receipt of the $102,000. In that regard, we disagree with plaintiffs' assertion that defendants'pleadings failed to comply with the particularity requirements of CPLR 3015 (a). Inasmuch asthe complaint alleged that plaintiffs fulfilled all of the obligations contained in the developmentagreement, defendants' general denials were sufficient to place the performance or occurrence ofthe conditions precedent in issue (see Allis-Chalmers Mfg. Co. v Malan Constr. Corp.,30 NY2d 225, 233-234 [1972]; UnitedStates Fid. & Guar. Co. v Delmar Dev. Partners, LLC, 22 AD3d 1017, 1022 [2005]),and the burden of proof was on plaintiffs to establish same (see CPLR 3015 [a]).
Turning to the merits, "[i]t is well settled that no action for breach of contract lies where theparty seeking to enforce the contract has failed to perform a specified condition precedent"(Navilia v Windsor Wolf Rd. Props. Co., 249 AD2d 658, 659 [1998]). Here, the recordreveals that the building was not fully leased until 2004, approximately one year after plaintiffs'services had been terminated. Accordingly, defendants were under no duty to pay plaintiffs the$102,000 pursuant to the leasing provision.
The record similarly fails to support plaintiffs' assertion that Carr provided Birnbaum withnotification indicating that he did not intend to exercise his option to purchase 50% of theproperty. To the extent that plaintiffs contend that notice was given in July 2003 following Carr's[*3]unsuccessful attempt to purchase 100% of theproperty, we note that, pursuant to the explicit terms of the development agreement, Carr'soption to purchase 50% of the property extended to "any time within the first five (5)years after the fee title is purchased by Birnbaum." As Birnbaum took title to the property in July1996, the option expired in July 2001. Notably, Carr's testimony indicates his awareness of thisfact. Consequently, plaintiffs failed to demonstrate that Carr satisfied the condition precedentpursuant to the option provision of the development contract and defendants were under noobligation to pay plaintiffs the $102,000 under that provision (see generally Boghosian vSCS Props., 299 AD2d 693, 694-695 [2002]).
Finally, given the existence of an enforceable agreement regarding the disputed subjectmatter, plaintiffs are not entitled to recover under a theory of unjust enrichment (see IDT Corp. v Morgan Stanley DeanWitter & Co., 12 NY3d 132, 142 [2009]; White v Ivy, 63 AD3d 1236, 1238-1239 [2009]). Plaintiffs'remaining arguments, to the extent not specifically addressed herein, have been reviewed and aredetermined to be without merit.
Spain, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: For the purposes of this appeal,we do not distinguish between those actions taken by Birnbaum, individually, and thoseperformed by Birnbaum in his capacity as principal of defendant Jay Birnbaum Company ordefendant JBJ Queensbury.
Footnote 2: The credit is shown as adevelopment fee to plaintiff Linda Carr. Although she and Birnbaum executed an agreementsubsequent to that entered into by Birnbaum, Howard and Carr, the parties here concede that theearlier agreement governs the parties' respective obligations.
Footnote 3: Defendants have abandonedtheir cross appeal regarding Supreme Court's award of management fees.