| Bibbo v 31-30, LLC |
| 2013 NY Slip Op 02366 [105 AD3d 791] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Paul Bibbo, Appellant, v 31-30, LLC, et al.,Respondents. |
—[*1] Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (John H. Gionis andDonna-Marie Korth of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, breach of covenantin deed, slander of title, and fraud, and pursuant to RPAPL article 15 to determine claimsto real property, the plaintiff appeals, as limited by his brief, from so much of an order ofthe Supreme Court, Nassau County (Marks, J.), entered September 21, 2011, as grantedthose branches of the defendants' motion which were pursuant to CPLR 3211 (a) todismiss the first, third, fourth, fifth, and sixth causes of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff entered into a contract of sale with the defendant 31-30, LLC(hereinafter the LLC), to purchase a parcel of residential property with an existingtwo-family dwelling. The property was one of two lots that would be created once theLLC subdivided its larger parcel. Under the terms of the contract, the LLC wouldconstruct a building on the adjoining lot. Thereafter, the LLC recorded a zoning lotdeclaration setting forth the allocation of available floor area for the single zoning lotunder the City of New York's zoning resolution between the two subdivided lots. Theplaintiff's lot was limited to the floor area in the existing two-family dwelling, and theremaining available floor area was allocated to the adjoining lot for a proposed six-storyresidential building. The closing and delivery of a deed with a covenant against grantor'sacts took place more than a year after the zoning lot declaration was recorded.
Nearly three years after closing, the plaintiff commenced this action against the LLCand its principal, George Elliot, alleging that the LLC improperly conveyed theproportional share of development rights in his property to the adjoining property. Theplaintiff asserted, inter alia, causes of action to recover damages for breach of contract,breach of covenant in deed, slander of title, and fraud, and to determine claims to realproperty pursuant to RPAPL article 15. The defendants moved, inter alia, pursuant toCPLR 3211 (a) (1) and (7) to dismiss the complaint. The Supreme Court granted themotion.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to[*2]state a cause of action, the court must afford thepleading a liberal construction, accept all facts as alleged in the pleading to be true,accord the plaintiff the benefit of every possible inference, and determine only whetherthe facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty,LLC, 54 AD3d 703, 703-704 [2008]; see Sokoloff v Harriman Estates Dev.Corp., 96 NY2d 409, 414 [2001]). On a motion to dismiss pursuant to CPLR 3211(a) (1) "on the ground that the action is barred by documentary evidence, such motionmay be appropriately granted only where the documentary evidence utterly refutesplaintiff's factual allegations, conclusively establishing a defense as a matter of law"(Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leonv Martinez, 84 NY2d 83, 88 [1994]).
Since title to the property had closed and the deed was delivered, "any claims theplaintiff might have had arising from the contract of sale were extinguished by thedoctrine of merger unless there was a clear intent evidenced by the parties that aparticular provision of the contract of sale [would] survive the delivery of the deed" (Ka Foon Lo v Curis, 29 AD3d525, 526 [2006] [internal quotation marks omitted]; see Novelty Crystal Corp. v PSAInstitutional Partners, L.P., 49 AD3d 113, 115 [2008]; Davis v Weg,104 AD2d 617, 619 [1984]). However, since the contract provision upon which theplaintiff relies in asserting his breach of contract cause of action expressly states that itsurvives the closing, the doctrine of merger does not apply.
The contract provision at issue provides that "[e]ach party shall, at any time and fromtime to time, execute, acknowledge where appropriate and deliver such furtherinstruments and documents and take such other action as may be reasonably requested bythe other in order to carry out the intent and purpose of this contract." Construing thecontract in accordance with its terms (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1NY3d 470, 475 [2004]), contrary to the plaintiff's contention, "the intent andpurpose" of the contract did not include the conveyance of the property together with aproportional share of the development rights in the subdivided single zoning lot. Theterms of the contract express the parties' understanding that the subject property wouldresult from the subdivision of the larger parcel, and the property was being conveyedsubject to zoning regulations and a zoning lot declaration governing the property and thenewly constructed building on the adjoining lot. Given this understanding and theabsence of any indication in the contract that the parties intended to reserve anydevelopment rights in the plaintiff's property, the LLC did not thwart the "intent andpurpose" of the contract by allocating all remaining available floor area to the adjoininglot for construction of the proposed building. The plaintiff's interpretation of the contractrequires reading an implied term into the document that the parties neglected to include,something a court "should be extremely reluctant" to do, especially in this arms-lengthreal property transaction (id. at 475 [internal quotation marks omitted]).
Accordingly, since the "intent and purpose" of the contract did not includeconveyance of any development rights together with the property, the LLC cannot berequired to execute an instrument or take any other action to convey such rights to theplaintiff under the surviving provision, and that branch of the defendants' motion whichwas to dismiss the breach of contract cause of action pursuant to CPLR 3211 (a) (1) wasproperly granted. For the same reasons, the cause of action pursuant to RPAPL article 15to determine claims to real property also was subject to dismissal.
The Supreme Court properly determined that the cause of action alleging breach ofdeed covenant, premised on an alleged breach of the covenant against grantor's acts, wassubject to dismissal pursuant to CPLR 3211 (a) (1). Under the circumstances presented,the documentary evidence established that the LLC's allocation of floor area to theadjoining property did not violate the covenant against the grantor's acts (seeReal Property Law § 253 [6]).
Moreover, the Supreme Court properly granted that branch of the defendants' motionwhich was to dismiss the slander of title cause of action, since the documentary evidencedemonstrates that the plaintiff received the title he contracted for, and he further failed toallege special damages with sufficient particularity (see Collision Plan Unlimited vBankers Trust Co., 63 NY2d 827, 831 [1984]; Drug Research Corp. v CurtisPubl. Co., 7 NY2d 435, 440-441 [1960]; Epifani v Johnson, 65 AD3d 224, 233 [2009]; L.W.C.Agency v St. Paul Fire & Mar. Ins. Co., 125 AD2d 371, 373 [1986]).[*3]
In addition, the Supreme Court properly grantedthat branch of the defendants' motion which was to dismiss the fraud cause of actionpursuant to CPLR 3211 (a) (7). "No cause of action to recover damages for fraud willarise when the only fraud alleged relates to a breach of contract" (Bella Maple Group, Inc. vAttias, 78 AD3d 1092, 1093 [2010]; see New York Univ. v Continental Ins.Co., 87 NY2d 308, 318-319 [1995]; Stangel v Zhi Dan Chen, 74 AD3d 1050, 1052 [2010]; Marcantonio v Picozzi, 70AD3d 655, 656 [2010]; KaFoon Lo v Curis, 29 AD3d 525, 526 [2006]). Mastro, J.P., Rivera, Chambersand Miller, JJ., concur. [Prior Case History: 2011 NY Slip Op 32506(U).]