D.S. Magic Tech, LLC v 2720 LLC

[*1] D.S. Magic Tech, LLC v 2720 LLC 2015 NY Slip Op 51649(U) Decided on November 19, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
15-341

D.S. Magic Tech, LLC, Plaintiff-Respondent,

against

2720 LLC, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Anthony Cannataro, J.), entered on December 10, 2014, which granted plaintiff's motion for summary judgment on its breach of contract cause of action.

Per Curiam.

Order (Anthony Cannataro, J.), entered on December 10, 2014, insofar as appealed from, affirmed, with $10 costs, for the reasons stated by Anthony Cannataro, J. at Civil Court.

The summary judgment record establishes that the parties entered into a Water & Energy Conservation Agreement, that plaintiff performed pursuant to the agreement by installing water use regulators on all showers and faucets in defendant's 166 unit building, and that defendant failed to make full payment to defendant pursuant to the fee structure set forth in the agreement. In opposition, defendant failed to raise any triable issue that the written agreement was executed under a mutual mistake or induced by fraud. In this regard, defendant failed to tender a "high level of proof in evidentiary form . . . that both parties reached an agreement other than that contained in the writing" (Chimart Assoc. v Paul, 66 NY2d 570, 574 [1986][internal citation and quotation marks omitted]; see George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219 [1978]), or that plaintiff misrepresented a material fact or intentionally concealed a material fact upon which defendant reasonably relied to its detriment (see Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 406-407 [1958]). Various statements allegedly made by plaintiff during negotiations as to "guaranteed" savings were too indefinite to support a claim of fraud (see Chimart Assoc. v Paul, 66 NY2d at 575).

This constitutes the decision and order of the Court.

I concur I concur I concur

Decision Date: November 19, 2015