Opinion
No. 11537/11.
2011-02-17
Stephen HAMBURG and Antoinette Delbene, Plaintiffs, v. WESTCHESTER HILLS GOLF CLUB, INC., Defendant.
Delbello Donnellan Weingarten, Wise & Wiederkehr, LLP, Lee S. Wiederkehr, White Plains. Gaines, Gruner, Ponzini & Novick, LLP, Joseph M. Buderwitz, Esq., White Plains.
Delbello Donnellan Weingarten, Wise & Wiederkehr, LLP, Lee S. Wiederkehr, White Plains. Gaines, Gruner, Ponzini & Novick, LLP, Joseph M. Buderwitz, Esq., White Plains.
J. EMMETT MURPHY, J.
The following papers numbered 1 to 24 have been read on this motion pursuant to CPLR 3212 brought by plaintiffs Stephen Hamburg and Antoinette Delbene seeking partial summary judgment and issuance of a permanent injunction and upon this cross-motion, pursuant to CPLR 3212, brought by defendant Westchester Hills Golf Club, Inc. seeking summary judgment dismissing plaintiffs' complaint.
+------------------------------------------------------------------+ ¦Papers ¦Numbers ¦ +-------------------------------------------------------+----------¦ ¦Notices of Motion/Cross Motion/Affirmations/Affidavits;¦1–3, 10–15¦ +-------------------------------------------------------+----------¦ ¦Exhibits; ¦4–9, 16–20¦ +-------------------------------------------------------+----------¦ ¦Memorandum of Law; ¦21 ¦ +-------------------------------------------------------+----------¦ ¦Replying Affirmations/exhibit; ¦22–24 ¦ +------------------------------------------------------------------+
Upon the foregoing papers, it is ORDERED that, for the reasons that follow, the plaintiffs' motion for partial summary judgment is denied; and it is further ORDERED that defendant's motion for summary judgment is granted.
Plaintiffs bring this action to obtain injunctive relief compelling defendant Westchester Hills Golf Club to remove fencing on that portion of the border between the defendant's golf course and plaintiffs' residential property, and precluding defendant from erecting any other such fence in the future, and requiring defendant to provide natural screening in compliance with the approval of its special permit application by the City of White Plains Common Council.
The events giving rise to this action arose out of defendant's application to secure an amended special use permit to demolish a 100 year-old maintenance and storage structure and to construct a prefabricated replacement maintenance and storage structure between the fourth and sixth hole of the golf course grounds. Plaintiffs are residential neighbors whose property borders defendant's golf course and who are in sight view of the maintenance and storage structure. On July 5, 2005, a public hearing was held before the White Plains Common Council. Plaintiff Stephen Hamburg spoke at the meeting as did several other residential neighbors, raising a variety of questions about the project. Thereafter, on July 24, 2005, defendant hosted an informational luncheon attended by certain of defendant's employees, members and representatives as well as plaintiffs and some of the other residential neighbors. What occurred at this luncheon is in dispute.
It is plaintiffs' contention that at this luncheon Drew Bollard, the defendant's general manager, specifically agreed that defendant would forever forego the construction of any fencing within view of plaintiffs' property in exchange for plaintiffs' withdrawal of their opposition to defendant's application for an amended special use permit and that this agreement was confirmed contemporaneously by Bob Valley, the defendant's director of construction and by Bob Lynch, the defendant's vice president.
It is the defendant's position that neither Mr. Bollard and Mr. Lynch entered into such agreement on the defendant's behalf at this luncheon. Defendant further asserts that neither John Salley, a member of defendant golf club nor Christopher Fisher, counsel for defendant, nor anyone else associated with the defendant ever entered into such an agreement to forebear installation of fencing between the golf course and plaintiffs' property and that any such agreement would never have been verbally made but would have only been considered in written form after approval by defendant's Board of Governors following recommendation from the defendant's Safety and Maintenance Committee. By affirmation, defendant's counsel Christopher Fisher would make various factual assertions, among them that he was present at the July 24, 2005 luncheon and that the issue of an existing chain link border fence was raised as a matter of interest to the plaintiffs and neighbors but that such was not relevant to the issue of the planned maintenance and storage facility and was not the subject of an agreement.
On August 1, 2005, the matter of the defendant's application for an amended special use permit was again before the Common Council for discussion. Plaintiffs contend that the agreement reached between them and the defendant at the luncheon was acknowledged and confirmed at the meeting and that the recording of the relevant aspects of the Common Council's meeting of that date evidences such. Plaintiffs particularly refer to the statement of plaintiff Hamburg, “We were assured that [the defendant] would agree not to put up a fence and that they would accommodate the neighbors in terms of who wanted what fencing if any was going to be put or if any were going to be repaired or if any was going to not be put up at all, which is what we would like and what several of our neighbors would like. And they have verbally assured us that they would do that.” Plaintiffs also quote the statement of the then-Mayor Delfino, referring to the luncheon, that, “I was there Sunday and I sat with them for a while and they brought up the same issues and I asked them exactly what occurred and they said just what you said; some did want it and some didn't want it and wherever they could accommodate those that want it and others that do not.” Mr. Fisher, later confirmed, “That was my understanding of the fence as well. It would be almost of a neighbor option as far as having a fence or not having a fence and the club would accommodate that and address it on a case by case basis.” At the conclusion of the public comment period, the Common Council voted unanimously to approve defendant's special use permit.
Almost four years later, in June of 2009, defendant constructed a boundary-line fence between the golf course and plaintiffs' property. Plaintiffs also contend that defendant has wrongfully removed trees and other vegetation. This action followed. In these applications, the parties move for summary relief.
The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law” (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [1985] ). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v. New York University Medical Center, 64 N.Y.2d at 853). However, “[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial” (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ). “The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues” (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ).
Before plaintiffs may secure redress for the breach of a contract, there must have been a promise made that is sufficiently certain and specific such that the parties' intentions are ascertainable ( see, Maffea v. Ippolito, 247 A.D.2d 366 [2d Dept., 1998] ). That is, “in order for a breach of contract to exist, there must be a meeting of the minds on the agreement said to have been breached” (Gomez v. Bicknell, 302 A.D.2d 107, 115 [2d Dept., 2002] ). “Mutual assent evincing the intention of the parties to form a contract is essential” (Gomez v. Bicknell, 302 A.D.2d at 115–116) and “[a]n agreement to agree, which leaves material terms of a proposed contract for future negotiation, is unenforceable” (Maffea v. Ippolito, 247 A.D.2d at 367;see Martin Delicatessen v. Schumacher, 52 N.Y.2d 105, 109 [1981] ).
Here, plaintiffs have failed in the first instance to demonstrate the existence of the mutual assent to form a contract, since there no evidence, other than plaintiffs own interpretation of the events of the July 24, 2005 luncheon and the August 1, 2005 Common Council meeting, that defendant intended to be bound to a promise to forever refrain from erecting a border fence in exchange for plaintiffs withdrawing their opposition to the unrelated maintenance and storage shed project. The video recording of the August 1, 2005 Common Council meeting does not, as plaintiffs argue, confirm the existence of a mutual agreement between the parties but rather evidences the defendant's expressed willingness to come to an agreement with the neighbors, plaintiffs among them, as to border fencing, on a case-by-case basis. There is no assertion on the part of plaintiffs, counsel for the defendant or anyone on the Common Counsel that the defendant's then-asserted position on border fencing was procured by a promise not to oppose the maintenance and storage facility. Indeed, this is supported by plaintiff Hamburg's expression of general support for the maintenance and storage facility both at the July Common Council meeting, which preceded the luncheon, and the August Common Council meeting in which he and other neighbors voiced questions, but not objections, about the maintenance and storage facility project. To the limited extent that complaints were voiced by plaintiff Hamburg and by other residential neighbors, such were, at best, only tangentially related to the proposed permit. If defendant attempted to placate the largely unrelated concerns of the residential neighbors to further its goal of garnering support for its pending application, any such agreement is not evidenced in the record before the Court which demonstrates on its face only the defendant's expression of willingness to consider in the future the neighbors' individual wishes as to border fencing. It does not, as plaintiffs argue, memorialize a bargained-for-exchange for defendant to forever refrain from constructing a border fence in exchange for plaintiffs refraining from opposing a project that they, by all outward signs, had no opposition to. Plaintiff's motion for summary judgment is accordingly denied.
Turning to defendant's cross motion for summary judgment, the defendant argues that plaintiffs' own admissions, as well as other undisputed evidence, conclusively demonstrate that the parties did not agree to all material terms necessary to an enforceable agreement. Particularly, defendant cites to the lack of record evidence that plaintiffs actually opposed, or were planning to oppose, its proposed permit and that without such evidence, the complaint must be dismissed. In support of its argument that, at best, it merely agreed to agree as to the issue of fencing and to work with the neighbors on a case by case basis, defendant proffers the written agreement it later entered with a mutual residential neighbor, which they annex to their motion papers along with a proposed written agreement which it unsuccessfully attempted to negotiate with the plaintiffs in 2009. These, defendant argues, evidence the intent of the parties and their mutual neighbors to work out the particular terms of any agreement as to border fencing and to memorialize any such agreements in writing. Finally, defendant argues that even if an oral agreement were found, such would be unenforceable as outside the statute of frauds.
Plaintiffs oppose the application and argue that their opposition to the permit was referenced in their panoply of questions and concerns about the project at the Common Council meeting of July 1, 2005 and that at the luncheon itself where the particulars of their opposition to the permit and defendant's promises with respect to the fencing issue occurred. They point out that the luncheon was scheduled as a direct consequence of their opposition to the proposed permit and that the Common Council's consideration of the permit at the July 1, 2005 meeting was adjourned to permit defendant to address the objections voiced by the neighbors. Plaintiffs take particular issue with the averments proffered by Mr. Fisher, defendant's counsel, who would assert in an attorney affirmation his personal observations and interpretation of events of the Common Council meetings as well as at the luncheon at which he claims to have attended despite his own recorded statement at the August 1, 2005 Common Council meeting that he was not present at the luncheon.
Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law ( see Andre v. Pomeroy, 35 N.Y.2d 361 [1974] ), and the Court's task on a motion brought pursuant to CPLR 3212 is not to resolve issues of fact, but merely to determine if such issues exist ( see Barr v. County of Albany, 50 N.Y.2d 247 [1980] ). Defendant, bears the burden on its cross motion for dispositive relief to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any genuine material issues of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986];Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985];Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Any failure on its part to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Center, 64 N.Y.2d at 853). Upon this showing, however, the burden would shift to plaintiffs as the party opposing the motion to produce admissible evidentiary proof sufficient to establish the existence of genuine material issues of fact which require a trial of the issues (Zuckerman v. City of New York, 49 N.Y.2d at 562). The Court will, in this regard, construe the facts in the light most favorable to plaintiffs as the non-moving party, so as not to deprive them of their day in court.
Generally, contracts to construct buildings, walls, fences and other structures on land, while related to land, are not within the statute of frauds regardless of whether these structures become real estate themselves when built ( see 9 Williston on Contracts § 25.15 [4th edition]; Am.Jur.2d Fences § 9). The alleged contract at issue here, however does not involve an affirmative agreement to erect a fence but rather an agreement to forever refrain from constructing a fence. Pursuant to the statute of frauds, an agreement not reduced to writing is void if, by its terms, it cannot be performed within one year of its making ( seeGeneral Obligations Law § 5–701 [a][1]; D & N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 454 [1984];Stillman v. Kalikow, 22 AD3d 660 [2d Dept., 2005]; Miranco Contr., Inc. v. Perel, 29 AD3d 873 [2d Dept., 2006] ). To that end, only those agreements which, by their terms, “have absolutely no possibility in fact and law of full performance within one year” will fall within the statute of frauds (D & N Boening v. Kirsch Beverages, 63 N.Y.2d at 454). Here, since the agreement at issue alleges the performance of an indefinite duration which could only be terminated within one year by breach, the alleged promise forever refrain from building a fence between the golf course and plaintiffs' property is within the statute of frauds (General Obligations Law § 5–701[a][1] ).
Here, the defendant has established its prima facie entitlement to summary judgment by tendering evidence that the alleged oral agreement failed to comply with the provisions of General Obligations Law § 5–701(a)(1). In opposition, the plaintiffs have failed to raise a triable issue of fact. While plaintiffs would argue that the withdrawal of their objections to the special permit application constitute part performance removing the alleged oral agreement from the statute of frauds, even assuming that partial performance would remove the agreement from General Obligations Law § 5–701[a][1] (Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229 [1999] ), plaintiff Hamburg's statements at the August 1, 2005 Common Council meeting could not be construed as unequivocally referable' to the agreement alleged” (Anostario v. Vicinanzo, 59 N.Y.2d 662, 664 [1983] ) unless they were “unintelligible or at least extraordinary,' [and] explainable only with reference to the oral agreement ( see Burns v. McCormick, 233 N.Y. 230, 232;Anostario v. Vicinanzo, 59 N.Y.2d at 664). Accordingly, defendant's motion for summary judgment is granted.