| Kaya v B & G Holding Co., LLC |
| 2012 NY Slip Op 08288 [101 AD3d 685] |
| December 5, 2012 |
| Appellate Division, Second Department |
| Ender Kaya et al., Appellants, v B & G Holding Co., LLC,Respondent. |
—[*1] Valerie Bauer Hobbs, Brentwood, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County (Jones,Jr., J.), dated April 13, 2011, as denied that branch of their motion which was for leave to renewthat branch of their prior motion which was for leave to serve a supplemental summons andamended complaint adding the principals of the defendant as defendants, which was denied in aprior order of the same court dated April 8, 2009, and granted the defendant's cross motion forsummary judgment dismissing the complaint.
Ordered that the order dated April 13, 2011, is modified, on the law, by deleting theprovision thereof granting that branch of the defendant's cross motion which was for summaryjudgment dismissing the cause of action alleging breach of contract, and substituting therefor aprovision denying that branch of the defendant's cross motion; as so modified, the order datedApril 13, 2011, is affirmed insofar as appealed from, without costs or disbursements.
In August 2006, the defendant entered into a contract (hereinafter the contract) to sell to theplaintiffs real property used as a horse farm. After the closing was delayed while the plaintiffsattempted to secure a mortgage, the parties entered into an agreement dated November 2, 2006,authorizing the plaintiffs to assume possession of, and operate, the horse farm. After theplaintiffs occupied the premises and paid certain expenses, including real estate taxes, thedefendant exercised its option to cancel the contract because the plaintiffs still had not secured amortgage. The defendant returned the down payment to the plaintiffs and eventually sold theproperty to a third party. In response to the cancellation of the contract, the plaintiffs commencedthis action against the defendant, among other things, to recover damages for breach of contractand to impose an equitable lien on the property to secure repayment of the real estate taxes. Afterissue was joined, the defendant moved to dismiss the complaint and to vacate the notice ofpendency. By order dated May 4, 2007, the Supreme Court denied that branch of the motionwhich was to dismiss the cause of action to recover money damages in the sum of $75,000 on thegrounds, inter alia, that the defendant admitted that the plaintiffs were entitled to reimbursementfor taxes paid. However, the court granted those branches of the defendant's motion which wereto dismiss the cause of action seeking to impose an equitable lien on the property and to vacatethe notice of pendency, on the ground that the issues raised in the action related only to damages,and not to title to the real property. The [*2]plaintiffs appealedfrom so much of the order as granted those branches of the defendant's motion, and this Courtaffirmed the order insofar as appealed from (see Kaya v B & G Holding Co., LLC, 48 AD3d 521, 522 [2008]).
In October 2008, the plaintiffs moved, inter alia, for leave to serve a supplemental summonsand amended complaint adding the principals of the defendant as defendants, on the ground thatthey had "absconded" with the defendant's assets, despite their knowledge of the plaintiffs'claims. By order dated April 8, 2009, the Supreme Court denied that branch of the plaintiff'smotion as "patently devoid of merit." The plaintiffs took an appeal from that order, but the appealwas dismissed on February 19, 2010, for lack of prosecution.
After depositions were taken, the plaintiffs moved, inter alia, for leave to renew that branchof their motion which was for leave to serve a supplemental summons and amended complaintadding the principals of the defendant as defendants. In support of their motion, the plaintiffsoffered evidence that the proceeds of the sale of the property to a third party were distributed tothe principals. The defendant opposed the plaintiffs' motion and cross-moved for summaryjudgment dismissing the complaint. The Supreme Court (Jones, Jr., J.), among other things,denied that branch of the plaintiffs' motion which was for leave to renew and, in viewing thecomplaint as alleging a cause of action to recover damages for tortious interference withprospective economic advantage, granted the defendant's cross motion for summary judgmentdismissing the complaint. The plaintiffs appeal.
The Supreme Court did not improvidently exercise its discretion in denying that branch ofthe plaintiffs' motion which was for leave to renew (see Deutsche Bank Natl. Trust Co. v Matheson, 77 AD3d 883, 884[2010]; St. Claire v Gaskin, 295 AD2d 336, 337 [2002]), as the "new" evidence that theplaintiffs submitted in support of that branch of their motion did not alter the analysis applicableto the original motion and would not have changed the prior determination (see CPLR2221; see generally Lucido vMancuso, 49 AD3d 220, 222 [2008]).
We disagree, however, with the Supreme Court's reading of the plaintiffs' first cause ofaction as alleging only tortious interference with prospective economic advantage. Fairlyconstrued, that cause of action also seeks damages for breach of contract. In support of its crossmotion for summary judgment, the defendant failed to establish its entitlement to judgment as amatter of law dismissing that cause of action insofar as it alleges breach of contract. Accordingly,that branch of the defendant's cross motion which was for summary judgment dismissing thecause of action alleging breach of contract should have been denied (see Environmental Tech. Group, Inc. vGannett Fleming Project Dev. Corp., 94 AD3d 943, 944-945 [2012]).
The parties' remaining contentions either are without merit or need not be addressed in lightof our determination. Balkin, J.P., Chambers, Roman and Cohen, JJ., concur.