Opinion
Index 523847/21
03-18-2022
ABSTRACT MANAGEMENT, LLC, Plaintiff, v. 1701 ALBEMARLE OWNERS CORP., Defendant,
Unpublished Opinion
DECISION AND ORDER
HON. LEON RUCHELSMAN JUDGE
The defendant, has moved pursuant to CPLR §3212 seeking summary judgement dismissing the lawsuit. The plaintiff has opposed the motion. Papers were submitted by the parties .and arguments held. After reviewing all. the. arguments this court how makes the .following determination.
On September 15, 2011 the plaintiff, a management company, entered into an agreement with the defendant owner of property located at 1701 Albemarle Road in Kings County wherein the plaintiff would provide property management services. Article VII(a) of the agreement states that "this agreement shall become effective on October 1, 2011 and shall continue in full force and effect until September 30, 2021. Thereafter, the contract shall automatically be renewed at the same terms and conditions unless either party hereto shall serve written notice of cancellation personally or by registered mail send to the address first hereinabove set forth within ninety [90] to one, hundred twenty [120] days prior to the expiration of this agreement (10 years)" (id). On August 20, 2021 the defendant served a letter upon the' plaintiff informing them, of their termination effective as of September 30, 2021. The plaintiff rejected that letter oil various grounds including the fact, the notice of termination was not timely served. Indeed, the plaintiff commenced this action seeking a declaration the management agreement remains in full force and effect. The defendant, has now moved Seeking to dismiss the lawsuit on the grounds there are no questions of fact the management, agreement was properly terminated..
Conclusions Of Law
Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury (Aronson v. Horace Mann-Barnard School, 224 A.D.2d 249, 637 N.Y.S.2d 410 [1st Dept., 1996]). However, where Only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Derdiarian v. Fellix Contracting Inc., 51 N.Y.2d 308; 434 N.Y.S.2d 166 [1980]) .
Pursuant to General Obligations Law §5-903 the plaintiff was required to notify the defendant that the agreement contained an automatic renewal clause before the time in which the defendant had to exercise any termination. Thus, while there is no dispute the defendant did not notify the plaintiff within, ninety to one hundred and twenty days prior to the renewal, there, is also no dispute the plaintiff did not notify the defendant of the existence of such renewal clause pursuant to GOL §5-903. The plaintiff asserts there are issues of fact whether the defendant is estopped from relying on GOL §5-9C3 because it engaged the plaintiff in long term, projects providing a, firm, basis for believing the contract would be renewed.
In Johnson v. UniFirst Corp., 67 A.D.3d 1442, 889 N.Y.S.2d 349 [4th Dept., 2009] the court rejected an argument that a party can waive, its rights pursuant to GOL §5-903 merely by its course of conduct. The court explained, citing earlier authority, that such a waiver would essentially "nullify the only purpose of [section 5-903(2)], which is to render such [automatic renewal provisions unenforceable] unless the Statutory notice is given" (id). Further, in Protection Industries Corp., v. DDB Needham Worldwide Inc, , 306 A.D.2d 175, 763 N.Y.S.2d 546 [1st Dept., 2003] the court held that GOL §5-903 was not waived even where the party continued to make payments after the termination date and consequently, despite such payments, the contract was not renewed. The case of Otis Elevator Company v. 1166 Avenue of Americas Condominium, 166 A.D.2d 307, 564 N.Y.S.2d 119 [1st Dept., 1990] does hot demand a contrary result. In that case the court granted a motion to amend the complaint to add causes of action on the grounds "the defendant may be estopped from relying on GOL §5-90-3" (id). That one paragraph decision does not provide any facts upon, which the court can discern the basis for such ruling. In any event the far more recent cases cited above (Johnson v, UniFirst Corp., (supra) and Protection Industries Corp., v. DDB Needham Worldwide Inc. (supra)) clearly foreclose reliance upon any waiver based upon any course of conduct. Thus, the failure to initiate a notice pursuant to GOL §5-903 renders the contract terminated.
Therefore, the mere fact the plaintiff was led to believe, the defendant required them for long term contracts does not constitute a waiver of the requirements pursuant to GOL §5-903. The plaintiff argues the defendant had an obligation to notify its intentions regarding termination to the plaintiff so that the plaintiff could then comply with GOL §5-903. The plaintiff asserts that "defendant hot only remained silent as to its intent, but engaged Plaintiff to set in action another long-term capital improvement project, the Heating Overhaul, utilizing Plaintiff's long-cultivated business' relationships with outside vendors and contractors" (see, Affirmation in Opposition ¶71). However, there is no such, rule wherein a party has to first, notify the other, party of its intent to terminate to trigger the applicability of GCL §5-903. Therefore, there are no questions of fact the contract has terminated.
Further, there is no merit to the argument the motion. should be denied so that the parties should be given the opportunity to conduct discovery and explore the possibility of any estoppel arguments. That is an improper basis upon which to oppose a motion for summary judgement. Indeed, the hope that future discovery might yield questions of fact is merely speculation insufficient to defeat a motion for summary judgement (Silverstein v. Westminster House Owners Inc., 50 A.D.3d 257, 855 N.Y.S.2d 64 [1st Dept., 2008]). Thus, arguments that discovery might raise question of fact, is without merit (see, Lopez v. WS Distribution Inc., 34 A.D.3d 759, 826 N.Y.S.2d 516 [2d Dept., 2006]).
As noted, there is ho dispute the plaintiff failed to satisfy the requirements of GOL §5-903 and there is no basis to argue such requirement was waived.
Therefore, the motion seeking summary judgement, dismissing the lawsuit is granted.
SO ordered.