| Kimso Apts., LLC v Gandhi |
| 2013 NY Slip Op 01535 [104 AD3d 742] |
| March 13, 2013 |
| Appellate Division, Second Department |
| Kimso Apartments, LLC, et al., Plaintiffs/CounterclaimDefendants-Appellants-Respondents, v Mahesh Gandhi,Defendant/Counterclaim Plaintiff-Respondent-Appellant. Arlington Filler et al.,Additional Counterclaim Defendants-Respondents. |
—[*1] John Z. Marangos, Staten Island, N.Y., for plaintiff/counterclaimdefendant-appellant-respondent Poonam Apartments, LLC. Cordova & Schwartzman, LLP, Garden City, N.Y. (Jonathan B. Schwartzman andDebra L. Cordova of counsel), for plaintiff/counterclaim defendant-appellant-respondent185-225 Parkhill LLC, and for additional counterclaim defendants/respondents ArlingtonFiller and Darshan Shah (one brief filed). Heller, Horowitz & Feit, P.C., New York, N.Y. (Eli Feit, Stuart A. Blander, andAllen M. Eisenberg of counsel), for defendant/counterclaimplaintiff-respondent-appellant.
In an action, inter alia, to recover damages for breach of contract, theplaintiffs/counterclaim defendants appeal, as limited by their respective briefs, from somuch of a judgment of the Supreme Court, Richmond County (Fusco, J.), datedSeptember 1, 2011, as, upon a decision and order (one paper) of the same court datedAugust 22, 2011, inter alia, granting the defendant/counterclaim plaintiff's application toconform the pleadings to the proof to include a counterclaim alleging that theplaintiffs/counterclaim defendants breached a settlement agreement dated August 14,2002, by failing to make payments owed to him pursuant to that agreement and forjudgment on that counterclaim, is in favor of the defendant/counterclaim plaintiff andagainst them in the principal sum of $1,700,000 on that counterclaim and dismissed thecomplaint, and the defendant/counterclaim plaintiff cross-appeals, as limited by his brief,from so much of the same judgment as dismissed his counterclaim for costs and legalfees.
Ordered that the judgment is modified, on the facts and in the exercise of [*2]discretion, by deleting the second, third, fourth, and fifthdecretal paragraphs thereof; as so modified, the judgment is affirmed insofar as appealedand cross-appealed from, without costs or disbursements, the application to conform thepleadings to the proof to include a counterclaim for payments allegedly due pursuant to asettlement agreement dated August 14, 2002, and for judgment on that counterclaim, isdenied, and the decision and order dated August 22, 2011, is modified accordingly.
On August 14, 2002, the plaintiffs/counterclaim defendants (hereinafter the plaintiffcorporations) and the additional counterclaim defendants entered into a settlementagreement with the defendant/counterclaim plaintiff (hereinafter the defendant), settlingseveral lawsuits. In this action, the plaintiff corporations sued the defendant, claimingthat he owed them money pursuant to several promissory notes for loans made to himprior to the settlement agreement. The defendant responded by asserting that hisobligations under the promissory notes had been extinguished by the settlementagreement. Following a nonjury trial, the trial court entered judgment in favor of thedefendant.
Upon reviewing a determination made after a nonjury trial, the power of theAppellate Division is as broad as that of the trial court, and it may render the judgment itfinds warranted by the facts, taking into account that in a close case the trial judge hadthe advantage of seeing and hearing the witnesses (see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Novair Mech. Corp. v UniversalMgt. & Contr. Corp., 81 AD3d 909, 909-910 [2011]; Baygold Assoc., Inc. vCongregation Yetev Lev of Monsey, Inc., 81 AD3d 763, 764 [2011], affd19 NY3d 223 [2012]). We find no basis to disturb the trial court's determination thatthe settlement agreement extinguished the defendant's obligations under the subjectpromissory notes.
A written agreement that is complete, clear, and unambiguous on its face must beenforced so as to give effect to the meaning of its terms and the reasonable expectationsof the parties, and the court should determine the intent of the parties from within thefour corners of the contract without looking to extrinsic evidence to create ambiguities(see South Rd. Assoc., LLC vInternational Bus. Machs. Corp., 4 NY3d 272, 277 [2005]; W.W.W. Assoc.v Giancontieri, 77 NY2d 157, 162 [1990]; Belle Harbor Wash. Hotel, Inc. v Jefferson Omega Corp., 17AD3d 612 [2005]). Here, a plain reading of the settlement agreement establishes thatit settled, among other things, all known and unknown claims that were the subject of theprior lawsuits. The prior lawsuits involved, inter alia, the disposition of the plaintiffcorporations' assets, and the liquidation of the defendant's ownership interest in theplaintiff corporations. The subject promissory notes were assets of the plaintiffcorporations, and clearly would have been an issue in the subject prior lawsuits had theycontinued to be prosecuted. Accordingly, the trial court properly dismissed the plaintiffcorporations' action, on the ground that their claims were barred by the settlementagreement.
However, the trial court improvidently exercised its discretion in granting thedefendant's application at the conclusion of the trial to conform the pleadings to the proofto include a counterclaim alleging that the plaintiff corporations breached the settlementagreement by failing to make payments allegedly owed to him pursuant to that agreementand for judgment in the defendant's favor on that counterclaim. Although leave to amenda pleading "shall be freely given" in the absence of surprise or prejudice (CPLR 3025[b]), in view of the defendant's extensive delay in moving to assert his counterclaim, hislack of a reasonable excuse for the delay in seeking that relief, and the fact that he wasfully aware of the facts underlying the amendment sought during the entire time thisaction was pending, the trial court should have denied his application as barred by thedoctrine of laches (seeComsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d523, 525 [2005]; Sewkarran v DeBellis, 11 AD3d 445, 445-446 [2004];cf. Mular v Fredericks, 305 AD2d 648 [2003]). The belated amendment of thedefendant's answer prejudiced the plaintiff corporations, since they had no opportunity topresent defenses to the counterclaim.
The parties' remaining contentions are without merit, or need not be addressed inlight of our determination. Dillon, J.P., Dickerson, Leventhal and Hinds-Radix, JJ.,concur.