| Chelsea Piers L.P. v Hudson Riv. Park Trust |
| 2013 NY Slip Op 03161 [106 AD3d 410] |
| May 2, 2013 |
| Appellate Division, First Department |
| Chelsea Piers L.P., Appellant, v Hudson RiverPark Trust, Respondent. |
—[*1] Gibson, Dunn & Crutcher LLP, New York (Randy M. Mastro of counsel), forrespondent.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered on orabout July 30, 2012, which, upon reargument, granted defendant's motion to dismiss thecomplaint, unanimously modified, on the law, to declare in defendant's favor on the firstcause of action, and otherwise affirmed, without costs. Appeal from order, same courtand Justice, entered April 19, 2012, unanimously dismissed, without costs as supersededby the appeal from the order entered on or about July 30, 2012.
In 1994 plaintiff, as lessee, and defendant's predecessor in interest, as lessor, enteredinto a lease. Section 10.1 (a) requires plaintiff to, among other things, maintain thepremises. Section 10.1 (b) of the lease states that "in the event a comprehensive, publicmaintenance plan for Hudson River waterfront piers in New York City (as opposed to alimited plan for certain designated piers) is adopted and becomes effective during theterm of this Lease, then Lessor shall, or if Lessor is not the entity establishing such plan,it shall use its best efforts to (i) include the Premises in such plan, and (ii) assure thatLessee's obligations to maintain the piers within the Premises pursuant to subsection (a)above is not relied upon to exclude the Premises from such plan or to reduce the amountof maintenance activity or funding applied to the Premises under such plan." The leasedoes not define "comprehensive, public maintenance plan."
The first cause of action of plaintiff's complaint seeks a declaration that defendanthas established and undertaken the "comprehensive, public maintenance plan" mentionedin section 10.1 (b) of the lease. The second cause of action alleges that defendant hasbreached the lease by failing to include the premises in the plan.
There are 57 Hudson River waterfront piers in New York City. Twenty-one and ahalf piers are excluded from the Hudson River Park (the Park) by the Hudson River ParkAct (the Act) and by the Park's geographical boundaries. In addition, defendant does notprovide maintenance for at least 11 additional piers, including the three leased byplaintiff. In sum, even if one includes the four piers that have been dismantled and turnedinto "pile fields" (demolished piers), defendant is providing maintenance for only 24.5out of 57 piers, or 43% of the total. That is hardly "comprehensive," as that term isdefined in the dictionary (see Merriam-Webster's Collegiate Dictionary 255 [11thed 2005] [defining "comprehensive" as "covering completely or [*2]broadly"]; see also R/S Assoc. v New York Job Dev.Auth., 98 NY2d 29, 33 [2002] [consulting dictionary for meaning of a term]).
Plaintiff's reliance on the massive scale and cost of the Park is unavailing. The leasedoes not merely refer to a "comprehensive" plan; it refers to a comprehensivemaintenance plan. Similarly, defendant's acknowledgment that the Park meets theobjectives of the New York City Comprehensive Waterfront Plan is unavailing becausethe latter plan is not a maintenance plan.
Even if a comprehensive maintenance plan within the meaning of section 10.1 (b)has been adopted, plaintiff's claims are time-barred. Defendant's contractual obligationwas to include the premises in the plan and assure that the amount of funding for thepremises under the plan was not reduced; it was not a continuing obligation to fund piermaintenance. Therefore, defendant's time for performance was, at the latest, the datewhen the plan was adopted and became effective.
In its complaint, plaintiff alleged that the comprehensive maintenance plan was aplan that defendant submitted to the Army Corps of Engineers in 1998. However, onappeal, plaintiff contends that the Act is the plan. In any event, since the Act becameeffective in 1998, plaintiff's claims, brought in 2011, are still time-barred (seeCPLR 213 [2]).
Plaintiff's argument that it could not have sued for breach of contract before 2009because it had sustained no damages is unavailing. "In New York, a breach of contractcause of action accrues at the time of the breach," even if no damage occurs until later(Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993]).
Since defendant's obligation under section 10.1 (b) is unambiguous, plaintiff may notresort to extrinsic evidence, such as the parties' course of performance (see W.W.W.Assoc. v Giancontieri, 77 NY2d 157, 162-163 [1990]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Tom, J.P., Sweeny, Saxe, Román and Feinman, JJ.