| Maser Consulting, P.A. v Viola Park Realty, LLC |
| 2012 NY Slip Op 00498 [91 AD3d 836] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Maser Consulting, P.A., Respondent, v Viola Park Realty,LLC, Appellant, et al., Defendants. |
—[*1] Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC, New Windsor, N.Y. (TimothyP. McElduff, Jr., of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant Viola ParkRealty, LLC, appeals (1), as limited by its brief, from so much of an order of the Supreme Court,Rockland County (Jamieson, J.), entered September 23, 2010, as granted that branch of theplaintiff's motion which was for summary judgment, in effect, on the cause of action allegingbreach of contract insofar as asserted against it, and (2) a judgment of the same court datedJanuary 5, 2011, which, upon the order, is in favor of the plaintiff and against it in the principalsum of $35,382.95.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from so much of the order as granted that branch of the plaintiff's motion whichwas for summary judgment, in effect, on the cause of action alleging breach of contract insofar asasserted against it must be dismissed because the right of direct appeal from that portion of theorder terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d241, 248 [1976]). The issues raised on the appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
"The fundamental, neutral precept of contract interpretation is that agreements are construedin accord with the parties' intent" (Greenfield v Philles Records, 98 NY2d 562, 569[2002]). "Where . . . the contract is clear and unambiguous on its face, the intent ofthe parties must be gleaned from within the four corners of the instrument, and not from extrinsicevidence" (Rainbow v Swisher, 72 NY2d 106, 109 [1988]; see Beal Sav. Bank v Sommer, 8 NY3d318, 324 [2007]; Vermont TeddyBear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; Etion v Etzion,84 AD3d 1015, 1017 [2011]). "The construction and interpretation of an unambiguous writtencontract is an issue of law within the province of the court" (Franklin Apt. Assoc., Inc. v Westbrook Tenants Corp., 43 AD3d860, 861 [2007]). "The court's role is limited to interpretation and enforcement of the termsagreed to by the parties, and the court may not rewrite the contract or impose additional termswhich the parties failed to insert" (131Heartland Blvd. Corp. v C.J. Jon Corp., 82 AD3d 1188, 1189 [2011]; see Matter ofSalvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173, 182 [1995]). Extrinsicevidence will be considered [*2]only if the contract is deemedambiguous (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 163 [1990]; Quality King Distribs., Inc. v E & M ESR,Inc., 36 AD3d 780, 782 [2007]).
The plaintiff established its prima facie entitlement to judgment as a matter of law on itscause of action alleging breach of contract insofar as asserted against the defendant Viola ParkRealty, LLC (hereinafter the appellant), by submitting the executed written agreement between itand the appellant and evidence that the appellant failed to pay it for services it renderedaccording to the terms of the subject agreement (see McFadyen Consulting Group, Inc. v Puritan's Pride, Inc., 87 AD3d620, 621 [2011]; Yellow BookSales & Distrib. Co., Inc. v Mantini, 85 AD3d 1019, 1021 [2011]; Castle Oil Corp. v Bokhari, 52 AD3d762 [2008]).
In opposition, the appellant failed to raise a triable issue of fact. Contrary to the appellant'scontention, the subject agreement is clear and unambiguous in unconditionally requiring theappellant to pay the plaintiff, upon receipt of invoices from the plaintiff, for work the plaintiffperformed pursuant to the subject agreement, and in not requiring the plaintiff to perform thetasks enumerated in the agreement in a particular order (see Beal Sav. Bank v Sommer, 8NY3d at 324; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d at 475;Rainbow v Swisher, 72 NY2d at 109; Etzion v Etzion, 84 AD3d at 1017). Theaffidavit of the appellant's expert fails to raise a triable issue of fact, as it contains only bareconclusory assertions, is impermissibly speculative, and is without probative value (seeAmatulli v Delhi Constr. Corp., 77 NY2d 525, 533 [1991]; Roldan v New York Univ., 81 AD3d625, 627 [2011]; Ioffe v HampshireHouse Apt. Corp., 21 AD3d 930 [2005]).
The appellant's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion whichwas for summary judgment, in effect, on its cause of action alleging breach of contract insofar asasserted against the appellant. Florio, J.P., Balkin, Belen and Chambers, JJ., concur.