Opinion
04-23-2024
Adriana AGBO, Plaintiff–Appellant–Respondent, v. CONSTANTIN ASSOCIATES, LLP et al., Defendants–Respondents–Appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Cynthia S. Butera of counsel), for appellant-respondent. Lisa Cahill PLLC, New York (Lisa Cahill of counsel), for respondents-appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Cynthia S. Butera of counsel), for appellant-respondent.
Lisa Cahill PLLC, New York (Lisa Cahill of counsel), for respondents-appellants.
Oing, J.P., Mendez, Shulman, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about July 6, 2023, which, to the extent as appealed from as limited by the briefs, granted plaintiff’s motion for summary judgment insofar as it sought liability on her cause of action for breach of the written ownership agreement (first cause of action) and denied the motion insofar as it sought a declaration that plaintiff has a 65% ownership interest in defendant Constantin Associates, LLP, and denied defendant’s cross-motion for summary judgment dismissing the first cause of action, unanimously affirmed, with costs.
[1] Plaintiff established her entitlement to summary judgment on liability with respect to the cause of action for breach of contract. The evidence submitted on plaintiff’s motion showed that the contract provided for issuance of a promissory note to plaintiff for the amount of her interest in Constantin Associates within 60 days of her resignation. Nevertheless, despite a year’s notice of plaintiff’s intention to resign, defendants took no steps toward the valuation of her interest or issuance of the note. As a result, defendants were liable for breach of the agreement. Despite defendants’ contention otherwise, the naming of an accounting firm to value the interest is not a condition precedent to liability (see Unigard Sec. Ins. Co. v. North Riv. Ins. Co., 79 N.Y.2d 576, 581, 584 N.Y.S.2d 290, 594 N.E.2d 571 [1992]).
[2, 3] However, plaintiff failed to establish her entitlement to a declaration that she was entitled to a 65% ownership of the business. As Supreme Court correctly found, the parties’ agreement is ambiguous on the issue of what plaintiff is to be paid out for her interest in Constantin Associations, and plaintiff therefore is not entitled to summary judgment on that issue. Although plaintiff is correct that she may rely on extrinsic evidence where, as here, the relevant terms in the parties’ agreement are ambiguous (see Slattery Skanska Inc. v. American Home Assur. Co., 67 A.D.3d 1, 14, 885 N.Y.S.2d 264 [1st Dept. 2009]), none of the evidence offered on plaintiff’s motion serves to resolve the ambiguity.
We decline to reach substantive issues not referenced in defendants’ notice of cross-appeal, as those issues are deemed waived (see Beauchamp v. Riverbay Corp., 156 A.D.2d 172, 172, 548 N.Y.S.2d 215 [1st Dept. 1989]).