Opinion
706305/13
05-06-2016
George Gatt, Plaintiff, v. BCRE 15 Union Square West LLC, BROWN HARRIS STEVENS RESIDENTIAL MANAGEMENT, LLC, TERRANCE BORG and ANDREW LASALLE, Defendant.
Defendant BCRE 15 Union Square West, LLC (BCRE) sponsored a mixed use condominium located at 15 Union Square West, New York , New York 10003. Pursuant to an agreement dated June 16, 2009, BCRE hired Brown Harris Stevens Residential Management, LLC (BHS) to serve as "the exclusive managing Agent of the Building." The agreement provided in relevant part: "At the first closing of a bona fide sale of a residential unit at the Building *** Sponsor shall assign this agreement to the Board of Managers of the 15 Union Square West Condominium *** and all references thereafter to Principal' shall refer only to the Board." By the Spring of 2009, the development of the condominium had reached a point where BCRE would begin to sell the residential units and where BCRE would transfer ownership of the condominium to the Board of Managers of the 15 USW Condominium Association.
Sam J. Carmody, the Vice-President of BHS, sent plaintiff George Gatt an "offer letter" dated April 2, 2009 which stated in relevant part: "On behalf of BCRE 15 Union Square West, LLC and/or 15 Union Square West Condominium, the owner of the above captioned Condominium Building [15 Union Square West Condominium, 15 Union Square West, New York , New York 10003] I am pleased to formally offer you employment as a Residential Manager. Your employment will commence on or about 7/1/09." The letter stated some of the terms of employment, such as a salary of $60,000 per year and the right to occupy Apartment 2B in the building, and further stated: "All other terms and benefits with respect to your employment shall be consistent with the current Resident Managers and Superintendents Agreement between Local 32-B-32J and the Realty Advisory Board." On or about June 3, 2009, plaintiff Gatt signed the "offer letter," which then became a contract.
The Local 32-BJ agreement was a collective bargaining agreement (CBA) between a union representing resident managers and building superintendents on the one hand and employers that are members of the Realty Advisory Board on the other. Article IV, paragraph 3 of the CBA provided in relevant part: "Any employee who is discharged shall be furnished with a written statement of reason(s) for such discharge no later than five (5) working days after the date of discharge."
The plaintiff alleges that defendant BCRE breached his employment agreement by sending him an electronic message on April 2, 2013 requiring him to vacate Apartment 2B. The plaintiff also alleges that defendant BCRE breached his employment agreement on or about May 1, 2013 when an agent of the management company "summarily" terminated his employment "by oral notice and without written notice of the termination as covenanted by Article IV, paragraph 3 of the Agreement, nor providing an explanation nor providing plaintiff an opportunity to contest the discharge."
This action ensued on or about December 31, 2013. The first cause of action is for breach of contract arising from the deprivation of Apartment 2B. The second cause of action is for breach of contract arising from the termination of employment without written notice and in deprivation of an opportunity to contest his discharge. The third cause of action is for tortious interference with prospective economic advantage. The fourth and fifth causes of action are for the infliction of emotional distress. The parties have stipulated to the withdrawal of the fourth and fifth causes of action.
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ***." ( Alvarez v. Prospect Hospital, 68 NY2d 320, 324.) Defendant BCRE successfully carried this burden.
In regard to the first cause of action, defendant BCRE has produced a document executed by plaintiff Gatt on or about May 2, 2013 which states in relevant part: "Condominium will provide a monthly allowance of $3000.00 for a Manhattan apartment or $2500.00 for an apartment in the Borough of Brooklyn or Queens within 10 miles of the building on or before the 1st of each and every month for duration of employment. This agreement is only in effect while Mr. Gatt is employed by the Condominium." The Condominium Association or BCRE wanted to sell Apartment 2B, and Gatt agreed to move out. Defendant BCRE made a prima facie showing that it is entitled to summary judgment dismissing the first cause of action, and in opposition the plaintiff failed to raise a genuine issue of fact. (See, Alvarez v. Prospect Hospital, supra.)
In regard to the first and second causes of action, defendant BCRE made a prima facie showing that it was neither a party to the plaintiff's employment agreement nor his employer. The letter dated April 2, 2009 states that the offer of employment was made"[o]n behalf of BCRE 15 Union Square West, LLC and/or 15 Union Square West Condominium." (Emphasis added.) The phrase "and/or" is ambiguous since it may mean that the offer was made (1) on behalf of BCRE or (2) on behalf of the Condominium, or (3) on behalf of both BCRE and the Condominium. The court initially determines as a matter of law whether the contract is ambiguous, i.e., whether reasonable individuals may differ as to the meaning of contractual language. (See, Bridge Public Relations and Consulting, Inc. v. Hylan Elec. Contracting, Inc. 65 AD3d 603.) If a court finds that a contract is ambiguous, extrinsic evidence may be considered to discern the meaning of the contract. (See, Ruthman, Mercadante & Hadjis P.C. v. Nardiello, 260 AD2d 904, 906; First Development Corp. v. Delco Plainview Realty Associates, 194 AD2d 711.) Extrinsic evidence of the parties' intent may be taken into consideration here since the court has found that the offer letter is ambiguous. (See, Van Kipnis v. Van Kipnis, 11 NY3d 573; Demetrio v. Stewart Title Ins. Co., 124 AD3d 824 ; Caruso v. Ne. Emergency Med. Associates, P.C., 54 AD3d 524.) In the case at bar, the extrinsic evidence demonstrates that the offer of employment was actually made on behalf of the Condominium Association. There was no intent that BCRE would be the plaintiff's actual employer. Once the first condominium unit was sold, the Condominium Association assumed the ownership and the management of 15 Union Square West. Plaintiff Gatt was hired at about the time the first residential unit was sold, and the intent of the parties was to hire a superintendent in connection with the sale of the residential units and in connection with the transfer of the condominium to the Condominium Association. The offer letter stated: "Your employment will commence on or about 7/1/09." New York City real estate records demonstrate that the first unit of the condominium was sold on June 25, 2009, shortly before the start of the plaintiff's employment on July 1, 2009. Plaintiff Gatt's W-2 statements and pay stubs named his employer as "15 USW Condominium Association." The extrinsic evidence demonstrates that plaintiff Gatt worked for the Condominium Association, not BCRE, and that at the time of his discharge BHS, the managing agent responsible for the discharge, worked for the Condominium Association, not BCRE. "Where *** a party's extrinsic evidence demonstrates not only that its interpretation is reasonable but that it is the only fair interpretation summary judgment is appropriate ***," ( Demetrio v. Stewart Title Ins. Co., 124 AD3d 824, 826 [internal quotation marks and citations omitted].) In the case at bar, the extrinsic evidence demonstrates that the employment offer was made by the Condominium Association, not BCRE, which cannot be held liable for breach of contract. A non-party to an agreement cannot be held liable for breach of contract. ( See, Meyer v. Staten Island Univ. Hosp., 117 AD3d 920; Black Car & Livery Ins., Inc. v. H & W Brokerage, Inc., 28 AD3d 595.) Moreover, at the time of the discharge, the Condominium Association had the obligations of the employer pursuant to the employment agreement, and any breach was the responsibility of the Condominium Association.
In regard to the third cause of action, defendant BCRE made a prima facie showing that it did not tortiously interfere with the plaintiff's prospective economic advantage by not giving him a favorable letter of recommendation. (See, Jacobs v. Continuum Health Partners, Inc., 7 AD3d 312.) In opposition, the plaintiff failed to raise a triable issue of fact. Dated: Long Island City, New York May 6, 2016 _____________________________