Opinion
2014-01-23
ALF NAMAN REAL ESTATE ADVISORS, LLC, Plaintiff–Appellant, v. CAPE SAG DEVELOPERS, LLC, et al., Defendants–Respondents.
Ira D. Tokayer, New York, for appellant. Pryor Cashman LLP, New York (Philip R. Hoffman of counsel), for respondents.
Ira D. Tokayer, New York, for appellant. Pryor Cashman LLP, New York (Philip R. Hoffman of counsel), for respondents.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered October 11, 2012, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The November 2, 2007 Amended and Restated Limited Company Agreement of Capnam Sag Management, LLC (Capnam Sag) prohibited defendant Cape Sag Developers, as managing member of Capnam Sag, from involving Capnam Sag in a merger except in a “Controlled Transaction” where the surviving entity is an “Affiliate” of Capnam Sag. As relevant to this appeal, an “Affiliate” of Capnam Sag is an entity which is “under common ownership or control” with Capnam Sag. On July 15, 2011, Cape Sag Developers entered into a limited liability company agreement as the sole owner and managing member of defendant Capsag Harbor, Management, LLC (Capsag Harbor), and effective July 18, 2011, Cape Sag Developers merged Capnam Sag into Capsag Harbor, with Capsag Harbor as the surviving entity.
The court properly found that the merger was permissible because Capsag Harbor was the “Affiliate” of Capnam Sag in that both companies were under the “common ownership or control” of Cap Sag Developers, which was the managing member in control of both companies. In making this finding, the court properly enforced the amended limited liability agreement according to the plain meaning of its terms, without looking to extrinsic evidence to create ambiguities not present on the face of the document ( see South Rd. Assoc., LLC v. International Bus. Machs. Corp., 4 N.Y.3d 272, 793 N.Y.S.2d 835, 826 N.E.2d 806 [2005]; W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 [1990] ). MAZZARELLI, J.P., FRIEDMAN, RENWICK, MOSKOWITZ, RICHTER, JJ., concur.