Opinion
2017–06403 Index No. 605616/16
12-23-2020
Alexandra Cushing HOWARD, etc., appellant, v. Lisa McGrath EVANS, respondent.
Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, White Plains, N.Y. (Robert A. Spolzino of counsel), for respondent.
Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn of counsel), for appellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, White Plains, N.Y. (Robert A. Spolzino of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, ROBERT J. MILLER, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract and for declaratory relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (John M. Galasso, J.), entered June 5, 2017. The order granted the defendant's motion for summary judgment, in effect, declaring that the parties did not have an enforceable agreement obligating her to effectuate a property subdivision and dismissing the second, third, and fourth causes of action.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, making an appropriate declaration in accordance herewith.
The parties each have a 50% membership interest in The Cushing/McGrath Family, LLC (hereinafter the LLC), and are the managing directors of the LLC, which is the owner of approximately 36.4 acres of real property located in the Village of Brookville (hereinafter the property). In December 2012, the parties executed an amended and restated operating agreement, which provided, inter alia, that the LLC will use "commercially reasonable efforts" to subdivide the property "substantially in accordance with" an attached plan designating "Area A" and "Area B," "provided, however, that the actual final delineation of the boundary between the areas designated as ‘Area A’ and ‘Area B’ ... shall be as the Managing Directors may agree and shall be subject to approval by the relevant local government authorities" (hereinafter the subdivision provision). In July 2016, the plaintiff, individually, and derivatively on behalf of the LLC, commenced this action, among other things, for a judgment declaring that the parties have an enforceable agreement obligating the defendant to effectuate the subdivision, and to recover damages for breach of contract. Thereafter, the defendant moved for summary judgment, in effect, declaring that the parties did not have an enforceable agreement obligating her to effectuate the subdivision and dismissing the second, third, and fourth causes of action. In an order entered June 5, 2017, the Supreme Court granted the defendant's motion. The plaintiff appeals.
" ‘To form a binding contract there must be a meeting of the minds, such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms’ " ( DCR Mtge. VI Sub I, LLC v. Peoples United Fin., Inc., 148 A.D.3d 986, 987, 50 N.Y.S.3d 144, quoting Stonehill Capital Mgt., LLC v. Bank of the W., 28 N.Y.3d 439, 448, 45 N.Y.S.3d 864, 68 N.E.3d 683 [internal quotation marks and citation omitted] ). Here, the defendant established, prima facie, that the subdivision provision did not constitute a binding agreement obligating the defendant to effectuate the proposed subdivision (see Mizrahi v. Cohen, 104 A.D.3d 917, 919, 961 N.Y.S.2d 538 ). Rather, the subdivision provision was expressly conditioned upon a "final delineation of the boundary ... as the Managing Directors may agree and ... subject to approval by the relevant local government authorities." In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact.
Furthermore, the defendant's motion was not premature, as the plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the defendant (see CPLR 3212[f] ; Rodriguez–Garcia v. Bobby's Bus Co., Inc., 175 A.D.3d 631, 632, 104 N.Y.S.3d 904 ).
The plaintiff's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment. Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the parties did not have an enforceable agreement obligating the defendant to effectuate the subdivision (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670 ).
SCHEINKMAN, P.J., LEVENTHAL, MILLER and WOOTEN, JJ., concur.