| Scotto v Georgoulis |
| 2011 NY Slip Op 07831 [89 AD3d 717] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Raphael F. Scotto, Respondent, v Chris Georgoulis et al.,Appellants. |
—[*1] Longo & D'Apice, Brooklyn, N.Y. (Mark Longo of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal froman order of the Supreme Court, Kings County (Schmidt, J.), dated June 4, 2010, which grantedthe plaintiff's motion, in effect, for summary judgment on the issue of liability on the cause ofaction alleging breach of contract and denied their cross motion, among other things, for leave toamend their answer to assert the defense of statute of limitations.
Ordered that the order is affirmed, with costs.
The defendants, Chris Georgoulis, Jim Tampakis, Thomas Tampakis, and John Tampakis,formed a corporation in 1985 for the purpose of buying a building in Brooklyn (hereinafter theBuilding). The corporation then conveyed the Building to the defendants as individual tenants incommon, with Georgoulis owning 40%, and each of the Tampakises owning 20%. Georgouliswas also a partner in Pentada Properties (hereinafter Pentada), another real estate investmentcorporation.
Georgoulis and the plaintiff, Raphael F. Scotto, are both attorneys who formed a lawpartnership in 1986. Also in 1986, Georgoulis signed a handwritten contract agreeing to sell toScotto one half of his interest in the Building and Pentada for $50,000. Georgoulis stated in anaffidavit that he split his income from the real estate investments with Scotto from that pointforward, and that he gave Scotto copies of K-1 forms for the Building as documentation ofincome received. As late as 2000, Scotto received 20% of the proceeds from a refinancing of theBuilding. Upon the dissolution of their law partnership in 2001, however, Scotto askedGeorgoulis to give him a deed for his 20% interest in the Building, and Georgoulis refused.
Scotto subsequently commenced this action, inter alia, to recover damages for breach ofcontract, and moved, in effect, for summary judgment on the issue of liability on the cause ofaction alleging breach of contract. The defendants cross-moved, inter alia, for leave to amendtheir answer to assert the defense of statute of limitations. In an affidavit submitted in support ofthe defendants' cross motion, Georgoulis stated that the subject contract gave Scotto only asecurity interest in the Building, in exchange for a $76,000 loan that Scotto had given him. TheSupreme Court granted Scotto's motion and denied the defendants' cross motion. We affirm.[*2]
"A written agreement that is clear, complete and subjectto only one reasonable interpretation must be enforced according to the plain meaning of thelanguage chosen by the contracting parties . . . Ambiguity is determined within thefour corners of the document; it cannot be created by extrinsic evidence that the parties intendeda meaning different than that expressed in the agreement and, therefore, extrinsic evidence maybe considered only if the agreement is ambiguous" (Brad H. v City of New York, 17 NY3d 180, 185-186 [2011][citations and internal quotation marks omitted]). "Whether an agreement is ambiguous is aquestion of law for the courts" (Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d398, 404 [2009] [internal quotation marks omitted]). Here, the contract statesunambiguously that Georgoulis gave Scotto one half of his interests in Pentada and the Buildingin exchange for $50,000. Although no deed was conveyed to Scotto, the equitable title passed tohim upon the execution of a valid contract, and Scotto's "interest in the real property thus cameinto existence by operation of law" (Rayv Ray, 61 AD3d 442, 444 [2009]). Thus, Scotto made a prima facie showing of hisentitlement to judgment as a matter of law on the issue of liability on the cause of action allegingbreach of contract, and in opposition, the defendants failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Courtproperly granted Scotto's motion, in effect, for summary judgment on the issue of liability on thecause of action alleging breach of contract.
The Supreme Court properly denied that branch of the defendants' cross motion which wasfor leave to amend their answer to assert the defense of statute of limitations, as the defense istotally devoid of merit (see Schwartz vSayah, 83 AD3d 926, 927 [2011]). The contract was not breached until 2001, whenGeorgoulis refused to turn over the deed at Scotto's request. This action was commenced wellwithin six years of that date (see Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399,402 [1993]).
The defendants' remaining contentions are without merit. Mastro, J.P., Angiolillo, Belen andLott, JJ., concur.