Opinion
No. 293CA 21-00744
06-10-2022
THE WALTON & WILLET STONE BLOCK, LLC, FOWLER GARDELLA CONSTRUCTION, LLC, AND THOMAS J. MILLAR, PLAINTIFFS-APPELLANTS, v. CITY OF OSWEGO COMMUNITY DEVELOPMENT OFFICE, CITY OF OSWEGO AND CAMELOT LODGE, LLC, DEFENDANTS-RESPONDENTS.
KIRWAN LAW FIRM, P.C., SYRACUSE (TERRY J. KIRWAN, JR., OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. BARCLAY DAMON, LLP, SYRACUSE (JON P. DEVENDORF OF COUNSEL), FOR DEFENDANTS-RESPONDENTS CITY OF OSWEGO COMMUNITY DEVELOPMENT OFFICE AND
KIRWAN LAW FIRM, P.C., SYRACUSE (TERRY J. KIRWAN, JR., OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
BARCLAY DAMON, LLP, SYRACUSE (JON P. DEVENDORF OF COUNSEL), FOR DEFENDANTS-RESPONDENTS CITY OF OSWEGO COMMUNITY DEVELOPMENT OFFICE AND
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ.
Appeal from an order of the Supreme Court, Oswego County (Gregory R. Gilbert, J.), entered April 19, 2021. The order, among other things, dismissed the second amended complaint.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: This case has been before us on two prior occasions (Walton & Willet Stone Block, LLC v City of Oswego Community Dev. Off., 175 A.D.3d 882 [4th Dept 2019], appeal dismissed 34 N.Y.3d 1145 [2020]; Walton & Willet Stone Block, LLC v City of Oswego Community Dev. Off. & City of Oswego, 137 A.D.3d 1707 [4th Dept 2016]). Plaintiffs now appeal from an order that, inter alia, granted the cross motion of defendants City of Oswego and City of Oswego Community Development Office (collectively, City defendants) for summary judgment dismissing the second amended complaint against them, granted the motion of defendant Camelot Lodge, LLC (Camelot) for summary judgment dismissing the second amended complaint against it, and denied plaintiffs' cross motion insofar as it sought to extend the notice of pendency. We affirm.
On appeal, plaintiffs do not challenge any of the grounds upon which Supreme Court actually granted the City defendants' cross motion. Instead, plaintiffs' arguments concerning that cross motion relate exclusively to tangential issues that did not impact the court's determination thereof. Thus, by failing to address the basis for the court's decision, plaintiffs "effectively abandoned" any challenge to the granting of the City defendants' cross motion (Haher v Pelusio, 156 A.D.3d 1381, 1382 [4th Dept 2017]; see Miller v Miller, 189 A.D.3d 2089, 2094-2095 [4th Dept 2020]; Barnett v DiSalvo, 187 A.D.3d 1548, 1549 [4th Dept 2020]). Moreover, inasmuch as specific performance "is an equitable remedy for a breach of contract, rather than a separate cause of action" (Cho v 401-403 57th St. Realty Corp., 300 A.D.2d 174, 175 [1st Dept 2002]; see M & E 73-75 LLC v 57 Fusion LLC, 189 A.D.3d 1, 6 [1st Dept 2020]; Warberg Opportunistic Trading Fund, L.P. v GeoResources, Inc., 112 A.D.3d 78, 86 [1st Dept 2013]), the dismissal of plaintiffs' breach of contract cause of action against the City defendants necessarily precludes any award of specific performance against Camelot (see generally SJSJ Southold Realty, LLC v Fraser, 150 A.D.3d 920, 922 [2d Dept 2017]; Finkelman v Wood, 203 A.D.2d 236, 237 [2d Dept 1994]). Although plaintiffs also asserted a declaratory judgment cause of action, no declaration is necessary under these circumstances (see Niagara Falls Water Bd. v City of Niagara Falls, 64 A.D.3d 1142, 1144 [4th Dept 2009]; Main Evaluations v State of New York, 296 A.D.2d 852, 853 [4th Dept 2002], appeal dismissed and lv denied 98 N.Y.2d 762 [2002]). Finally, given its dismissal of the underlying action, the court properly denied plaintiffs' cross motion insofar as it sought to extend the notice of pendency (see Alvaro v Faracco, 85 A.D.3d 1072, 1073 [2d Dept 2011]).