| Randall's Is. Aquatic Leisure, LLC v City of New York |
| 2012 NY Slip Op 00843 [92 AD3d 463] |
| February 7, 2012 |
| Appellate Division, First Department |
| Randall's Island Aquatic Leisure, LLC, et al.,Appellants, v City of New York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for theCity of New York, the New York City Department of Parks and Recreation and the New YorkCity Economic Development Corporation, respondents. Weil, Gotshal & Manges LLP, New York (Jonathan Bloom of counsel), for the Randall'sIsland Sports Foundation, respondent.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered July 22, 2010, whichgranted defendants City of New York, New York City Department of Parks and Recreation, andNew York City Economic Development Corporation's motion to dismiss the complaint as againstthem, unanimously affirmed, without costs.
Defendant New York City Economic Development Corporation (EDC) and plaintiffsAquatic Development Group, Inc. (ADG) and Recreation Development, Inc. (RDI) are notsignatories to the "Waterpark Concession Agreement" between plaintiff Randall's Island AquaticLeisure, LLC (RIAL) and the City (through the Department of Parks and Recreation), whichgoverns this dispute. Thus, ADG and RDI are not proper plaintiffs, and EDC is not a properdefendant, which alone is a sufficient ground on which to dismiss the complaint as against it.There can be no breach of contract claim against a non-signatory to the contract (Nuevo El Barrio RehabilitaciÓn deVivienda y Economía, Inc. v Moreight Realty Corp., 87 AD3d 465, 467 [2011]).There can be no claim of breach of the implied covenant of good faith and fair dealing without acontract (American-European Art Assoc. v Trend Galleries, 227 AD2d 170, 171 [1996]).And there can be no quasi-contract claim against a third-party non-signatory to a contract thatcovers the subject matter of the claim (Bellino Schwartz Padob Adv. v Solaris Mktg.Group, 222 AD2d 313, 313 [1995]).
The breach of contract claim against the City for terminating the agreement to build arecreation center fails because plaintiffs did not comply with the obligation to obtain financing.Plaintiffs' allegation of a course of conduct and oral promises extending their financing deadlinesis belied by the record, which demonstrates that all extensions granted by the City were inwriting, and reserved to the City all of its rights under the agreement, including the right toterminate if plaintiffs failed to meet certain financing conditions. Obtaining loan commitments[*2]by a date certain was a contractual obligation. Plaintiffs failedto meet the condition, and the City terminated the agreement. Thus, the breach of contract claimwas correctly dismissed as against it (seeJericho Group, Ltd. v Midtown Dev., L.P., 32 AD3d 294, 298 [2006]). The good faithand fair dealing claim fails because the City's termination of the agreement was consistent withthe agreement's express terms (PhoenixCapital Invs. LLC v Ellington Mgt. Group, L.L.C., 51 AD3d 549, 550 [2008]). Thepromissory estoppel claims fail because the statement that "possible loans" were being"considered" is not an allegation of clear and unambiguous promises upon which plaintiffs couldreasonably have relied (see New YorkCity Health & Hosps. Corp. v St. Barnabas Hosp., 10 AD3d 489, 491 [2004]). Theestoppel claims fail for the additional reason that they do not allege "dut[ies] independent of theagreement" (see Celle v Barclays BankP.L.C., 48 AD3d 301, 303 [2008]).
We have considered plaintiffs' remaining arguments and find them unavailing.Concur—Saxe, J.P., Friedman, Catterson, Freedman and Manzanet-Daniels, JJ. [PriorCase History: 2010 NY Slip Op 31934(U).]