Opinion
No. 2021-02006 Index No. 607083/20
02-28-2024
Ericka Keller-Wala, et al., respondents, v. Jose Coello, Sr., appellant.
Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale, NY (Philip J. Campisi and Michael Kwon of counsel), for appellant. Jacqueline Warner, Mount Vernon, NY (Earl Williams of counsel), for respondents.
Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale, NY (Philip J. Campisi and Michael Kwon of counsel), for appellant.
Jacqueline Warner, Mount Vernon, NY (Earl Williams of counsel), for respondents.
ANGELA G. IANNACCI, J.P., WILLIAM G. FORD, HELEN VOUTSINAS, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action for a judgment declaring that a contract dated June 5, 2018, is null and void, and unenforceable, the defendant appeals from an order of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered February 17, 2021. The order granted the plaintiffs' motion for summary judgment on the complaint and denied, as academic, the defendant's cross-motion for leave to amend his answer.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the contract dated June 5, 2018, is null and void, and unenforceable.
In July 2020, the plaintiffs, Ericka Keller-Wala and Brisa Builders Corp. (hereinafter Brisa Builders), commenced this action against the defendant for a judgment declaring that a written contract dated June 5, 2018, which was executed by Keller-Wala and the defendant, is null and void, and unenforceable. In the contract, the plaintiffs promised to pay certain developer fees and profit shares in various construction projects to the defendant and to transfer 10% ownership in Brisa Builders to him. The plaintiffs alleged, inter alia, that the contract lacked consideration.
The defendant, pro se, interposed an answer in which he asserted an affirmative defense of past performance. He also asserted a counterclaim, inter alia, to recover damages for breach of contract.
The plaintiffs moved for summary judgment on the complaint. The defendant opposed the motion and cross-moved for leave to amend his answer. In an order entered February 17, 2021, the Supreme Court granted the plaintiffs' motion and denied, as academic, the defendant's cross-motion. The defendant appeals.
To establish the existence of an enforceable agreement, there must be consideration, among other things (see Weiner v McGraw-Hill, Inc., 57 N.Y.2d 458, 464; Matter of Civil Serv. Empls. Assn., Inc. v Baldwin Union Free School Dist., 84 A.D.3d 1232, 1233-1234; Beitner v Becker, 34 A.D.3d 406, 407). "Consideration consists of either a benefit to the promisor or a detriment to the promisee" (Nassau County v New York State Urban Dev. Corp., 157 A.D.3d 805, 807 [internal quotation marks omitted]; see Beitner v Becker, 34 A.D.3d at 407). Under the contemporary definition of consideration, "[i]t is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him" or her (Weiner v McGraw-Hill, Inc., 57 N.Y.2d at 464 [internal quotation marks omitted]; see Nassau County v New York State Urban Dev. Corp., 157 A.D.3d at 807).
The Supreme Court properly granted the plaintiffs' motion for summary judgment on the complaint because they demonstrated, prima facie, that the contract fails for lack of consideration, and in opposition, the defendant failed to raise a triable issue of fact. The contract "contains no express consideration, nor are there any mutual promises of the parties to it from which such consideration can be fairly inferred" (Schlegel Mfg. Co. v Cooper's Glue Factory, 231 NY 459, 461; see Transatlantic Rapid Sys., Inc. v Decoulos, 270 A.D. 987).
Contrary to the defendant's contention, the plaintiffs' motion for summary judgment was not premature. "[W]hile a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, [a] party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant" (Yonghong Xia v Zhao Xian Zeng, 219 A.D.3d 914, 916 [internal quotation marks omitted]; see Elfe v Roman, 219 A.D.3d 1304, 1306). "A determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 A.D.2d 614, 615). Here, the proffered need of the defendant to conduct discovery did not warrant denial of the plaintiffs' motion, as "[t]he mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Yonghong Xia v Zhao Xian Zeng, 219 A.D.3d at 916-917 [internal quotation marks omitted]; see Elfe v Roman, 219 A.D.3d at 1306).
Moreover, the Supreme Court providently exercised its discretion in denying the defendant's cross-motion for leave to amend his answer (see Village Bank v Wild Oaks Holding, 196 A.D.2d 812, 813; Lighting Horizons v Kahn & Co., 120 A.D.2d 648, 649-650). "When a motion for summary judgment is granted, a cross motion to amend the answer is academic when that cross motion seeks a determination that could not have any practical effect on the existing controversy" (Village Bank v Wild Oaks Holding, 196 A.D.2d at 813). Here, the outcome of the proposed counterclaims, including those alleging unjust enrichment and quantum meruit, would have had no effect on the present controversy, and therefore, the court properly determined that the defendant's cross-motion was academic.
Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the contract is null and void, and unenforceable (see Lanza v Wagner, 11 N.Y.2d 317, 334).
IANNACCI, J.P., FORD, VOUTSINAS and VENTURA, JJ., concur.