Opinion
2014-05-13
ROSEN'S CAFÉ, LLC, Plaintiff–Appellant, v. 51ST MADISON GOURMET CORP., et al., Defendants–Respondents.
Siegel & Reiner, LLP, New York (Richard H. Del Valle of counsel), for appellant. Silver and Silver, LLP, New York (Herbert J. Silver of counsel), for respondents.
Siegel & Reiner, LLP, New York (Richard H. Del Valle of counsel), for appellant. Silver and Silver, LLP, New York (Herbert J. Silver of counsel), for respondents.
SWEENY, J.P., RENWICK, SAXE, FREEDMAN, RICHTER, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about April 25, 2013, which, after a nonjury trial, directed that plaintiff recover the amount of $2,000 against the corporate defendant, and authorized defendants' counsel to release remaining monies held in escrow, less his fees, to defendants, unanimously affirmed, without costs.
Where the parties set down the terms of their agreement (for the sale of defendants' restaurant business to plaintiff) in a clear and unambiguous writing, the agreement should be enforced according to its plain meaning ( see generally W.W.W Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 [1990] ). The trial court appropriately found the controlling terms for reimbursing plaintiff purchaser for costs expended to cure fire department violations (¶ 16 of the Agreement) to be clear and unambiguous. Language in a written agreement is deemed to be clear and unambiguous where it is reasonably susceptible of only one meaning ( see White v. Continental Cas. Co., 9 N.Y.3d 264, 267, 848 N.Y.S.2d 603, 878 N.E.2d 1019 [2007];Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 60 A.D.3d 61, 66, 869 N.Y.S.2d 511 [1st Dept.2008],affd.13 N.Y.3d 398, 892 N.Y.S.2d 303, 920 N.E.2d 359 [2009] ). Here, where the purchaser's costs to cure the violations exceeded $2,000, ¶ 16 explicitly provided that either the purchaser could cancel the contract, or, if the purchaser did not cancel and elected to close on the agreement (which it did), the seller would only be obligated to extend to purchaser a $2,000 maximum credit as against the purchase price, and that the purchaser would otherwise waive any claims it had in regard to violations existing against the property at the time of contracting. While plaintiff argues there was no evidence offered to indicate it had formally elected to close on the restaurant purchase agreement, the parties' conduct, on this record, affords a basis to support the trial court's finding that plaintiff opted to close on the agreement to purchase ( see e.g. Horsehead Indus. v. Metallgesellschaft AG, 239 A.D.2d 171, 657 N.Y.S.2d 632 [1st Dept.1997];Matter of Shearer, 94 A.D.3d 128, 940 N.Y.S.2d 570 [1st Dept.2012] ).
To the extent plaintiff argues that the parties provided for a $25,000 to $50,000 escrow amount to be held by defendants' counsel, and that such escrow bespeaks the parties' intent to fully reimburse plaintiff for its expenses to cure the violations, such argument is unsupported by the language in the relevant agreements and, in any event, such assertion is refuted by the specific “waiver” language in ¶ 16. Where the intent of the parties is clear from the unambigous language of the parties' agreements, resort to extrinsic evidence in an attempt to vary the terms of the agreements will not be countenanced ( see generally Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 963 N.Y.S.2d 613, 986 N.E.2d 430 [2013];Gladstein v. Martorella, 71 A.D.3d 427, 896 N.Y.S.2d 329 [1st Dept.2010] ).
To the extent plaintiff argues that the “all claims” language found in the indemnification agreement executed by the seller at the time of the closing should be broadly construed to provide that the purchaser can recoup its monies expended to cure preexisting violations against the premises, such argument is unavailing. As the trial court found, the fire department violation against the premises, inclusive of any fines and/or necessary costs to cure, did not constitute a “claim” against the corporate defendant at the time it owned the premises. Not only did ¶ 16 of the parties' agreement specifically address the issue of preexisting violations against the premises along with the rights and obligations of the parties vis-a-vis such violations ( see Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42, 150 N.Y.S.2d 171, 133 N.E.2d 688 [1956] [specific provision controls over the more generalized provision]; see also E–Z Eating 41 Corp. v. H.E. Newport L.L.C., 84 A.D.3d 401, 922 N.Y.S.2d 329 [1st Dept.2011] ), but the indemnification agreement, when fairly construed in relation to the terms in the parties' purchase agreement, should be construed so as not to obviate the waiver language in ¶ 16, and, if reasonable, to permit all the provisions in all the parties' agreements to be found effective and enforceable ( see Muzak Corp., 1 N.Y.2d at 46–47, 150 N.Y.S.2d 171, 133 N.E.2d 688). Thus, the trial court reasonably found that the parties intended that the “any claims” language in the indemnification agreement (as against the corporate defendant) pertained to pre-closing slip and falls on the property, food poisoning, and similar liability claims, but not fire department violations.