Opinion
2018-13848 Index 30574/15
03-23-2022
Joseph Herskowitz, appellant, v. Wesley Hills Center, LLC, respondent.
Joseph J. Haspel, Goshen, NY, for appellant. Richard A. Glickel, West Nyack, NY, for respondent.
Joseph J. Haspel, Goshen, NY, for appellant.
Richard A. Glickel, West Nyack, NY, for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Rolf Thorsen, J.), dated November 9, 2018. The judgment, insofar as appealed from, upon a decision of the same court dated October 9, 2018, made after a nonjury trial, is in favor of the defendant and against the plaintiff dismissing the cause of action to recover damages for breach of contract.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff tenant commenced this action, inter alia, to recover damages for breach of an option agreement (hereinafter the agreement) with the defendant landlord. After a nonjury trial, the Supreme Court determined, among other things, that the agreement was ambiguous, and that the evidence established that the agreement was unenforceable for lack of a meeting of the minds as to a material element.
"In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing the witnesses and hearing the testimony" (Rudovic v Rudovic, 190 A.D.3d 997, 998 [internal quotation marks omitted]; see Central Park Capital Group, LLC v Machin, 189 A.D.3d 984, 985).
"[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 N.Y.2d 562, 569; see R/S Assoc. v New York Job Dev. Auth., 98 N.Y.2d 29). "An agreement is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion" (Texas 1845, LLC v Kyaw, 117 A.D.3d 1028, 1031 [internal quotation marks omitted]; see Computer Assoc. Intl., Inc. v U.S. Balloon Mfg. Co., Inc., 10 A.D.3d 699). "Ambiguity in a contract arises when the contract, read as a whole, fails to disclose its purpose and the parties' intent, or where its terms are subject to more than one reasonable interpretation" (Universal Am. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 25 N.Y.3d 675, 680 [citations and internal quotation marks omitted]). "Where the offeror, using ambiguous language, reasonably means one thing and the offeree reasonably understands differently, there is no contract" (Computer Assoc. Intl., Inc. v U.S. Balloon Mfg. Co., Inc., 10 A.D.3d at 700).
Here, the Supreme Court properly concluded that the agreement was ambiguous and susceptible of more than one reasonable interpretation, as it used the term "tenant" to refer both to the plaintiff and to a potential new supermarket operator that the plaintiff agreed to provide (see Merchants Mut. Ins. Co. v Rutgers Cas. Ins. Co., 84 A.D.3d 756, 757). Contrary to the plaintiff's contention, the rule that ambiguous language in a contract will be construed against the drafter is not applicable here, because the agreement resulted from negotiations between commercially sophisticated parties (see Shadlich v Rongrant Assoc., LLC, 66 A.D.3d 759, 760; Coliseum Towers Assoc. v County of Nassau, 2 A.D.3d 562, 565)
"A contract is unenforceable where there is no meeting of the minds between the parties regarding a material element thereof" (Computer Assoc. Intl., Inc. v U.S. Balloon Mfg. Co., Inc., 10 A.D.3d at 700; see Otto v Dureja, 113 A.D.3d 829, 830; Brands v Urban, 182 A.D.2d 287, 289). Here, the Supreme Court's determination that there was no meeting of the minds as to a material term of the agreement was supported by the evidence (see 6115 Niagara Falls Blvd., LLC v Calamar Constr. Mgt., Inc., 193 A.D.3d 1436, 1440; Petkanas v Petkanas, 191 A.D.3d 708; Computer Assoc. Intl., Inc. v U.S. Balloon Mfg. Co., Inc., 10 A.D.3d at 700). Accordingly, the court properly granted judgment in favor of the defendant dismissing the cause of action to recover damages for breach of contract.
In light of our determination, we need not reach the parties' remaining contentions.
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.