Manzi Homes, Inc. v Pierzchanowski

[*1] Manzi Homes, Inc. v Pierzchanowski 2006 NY Slip Op 51853(U) [13 Misc 3d 1216(A)] Decided on April 3, 2006 Supreme Court, Suffolk County Mayer, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 2006
Supreme Court, Suffolk County

Manzi Homes, Inc., Plaintiff(s),

against

Edward F. Pierzchanowski and "John Doe # 1" Through "John Doe # 10," the last ten names being fictitious and unknown to the Plaintiff the person or parties being person or parties, if any, having or claiming an interest in or lien upon the mortgage premises described in the complaint, Defendant(s).



2918-2005



Steven E. Losquadro, Esq.

Attorney for Plaintiff

701D Route 25A

Rocky Point, New York 11788

Silberling & Silberling, Esqs.

Attorneys for Defendant

300 Rabro Drive Hauppauge, New York 11788

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated July 5, 2005, and supporting papers; (2) Notice of Cross Motion by the defendant dated August 18, 2005, and supporting papers; (3) Affirmation in Further Support by the plaintiff, dated September 8, 2005, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the plaintiff's motion, which seeks summary judgment pursuant to CPLR §3212 and costs of the motion, is hereby denied; and it is further

ORDERED that the defendant's cross-motion, which essentially seeks leave to amend the answer pursuant to CPLR §3025(b) for purposes of asserting counterclaims, is hereby denied, with leave to renew upon proper motion papers, including but not limited to submission of a proposed amended answer (Loehner v. Simons, 224 AD2d 591; 639 NYS2d 700 [2d Dept 1996]); and it is further

ORDERED that the plaintiff's counsel shall serve a copy of this Order, with notice of entry of same, upon defense counsel and the Suffolk County Clerk within 20 days from the date of this Order; and it is further

ORDERED that counsel for all parties are directed to appear for a Preliminary Conference on May 2, 2006, in the courtroom for the undersigned, located at 210 Center Drive, Part 17, Riverhead, New York 11901.

It is well settled that the remedy of summary judgment is a drastic one and there is considerable reluctance to grant summary judgment in negligence actions (Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). Summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact or where an issue of fact is even arguable, since it deprives a party of his day in court (Id; see also, Henderson v City of New York, 178 AD2d 129, 576 NYS2d 562 [1st Dept 1991]).

Issue finding rather than issue determination is the key to the procedure (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 [1957]). Since summary judgment is the procedural equivalent of a trial, if there is any doubt as to the existence of a triable issue, or where a material issue of fact is even "arguable," summary judgment must be denied (Phillips v Kantor & Co., 31 NY2d 307, 338 NYS2d 882 [1982]); Rotuba v Cepcos, 46 NY2d 223, 413 NYS2d 141 [1978]; Freeman v Easy Glider Roller Rink Inc., 114 AD2d 436, 494 NYS2d 351 [2d Dept 1985]). Furthermore, the proof of the party opposing the motion must be accepted as true and considered in a light most favorable to the opposing party (Dowsey v Megerian, 121 AD2d 497, 503 NYS2d 591 [2d Dept 1986]; Museums at Stony Brook v The Village of Patchogue Fire Department, 146 AD2d 572, 536 NYS2d 177 [2d Dept 1989]; Matter of Benincasa v Garrubbo, 141 AD2d 636, 529 NYS2d [*2]797 [2d Dept 1988]).

This action arose from the defendant's alleged breach of the parties' agreement dated November 18, 2002, whereby the plaintiff loaned the defendant Pierzchanowski $200,000 (the "Agreement"). The loan was secured by a mortgage placed on Pierzchanowski's residence located at 60 Randall Road, Wading River, New York. Under the Agreement and in consideration of the loan, Manzi was to pay two outstanding mortgages held against Pierzchanowski's residence. Manzi was then to issue a check to Pierzchanowski for the $200,000 loan, minus the amounts of any checks written in satisfaction of the mortgages, any checks previously issued to Pierzchanowski, as well as the costs of filing of the mortgage which is the subject of this action.

Plaintiff claims that there are no ancillary agreements between the parties regarding the loan, and that all items agreed to between the parties are reflected entirely in the November 18, 2002 Agreement. The defendant, however, asserts that there were a number of discussions between himself and Joe Manzi, the owner and president of Manzi Homes, during which Manzi promised that if Mr. Pierzchanowski secured the signature of Alice Pierzchanowski (defendant's mother) on a contract to sell to Manzi Homes her 10.79 acres of property in Wading River, Manzi would pay Pierzchanowski $100,000. The defendant also asserts that Manzi agreed to give an additional $100,000 for Mr. Pierzchanowski to help Manzi obtain a change of zone on Alice's property. Although the contract of sale between Manzi Homes and Alice, is not specifically incorporated in the parties' November 18, 2002 Agreement, Paragraph "4" of the Agreement does refer to that transaction. More specifically, Paragraph "4" states, "[s]hould the change of zone on the property of Alice Pierzchanowski be approved, and should, in addition to approval, Edward F. Pierzchanowski cooperate diligently in all aspects of the change of zone process, then Manzi Homes, Inc. shall forgive $100,000 of the aforementioned debt."

In his opposition summary judgment, the defendant submits a copy of the contract of sale between Manzi Homes, Inc. and Alice Pierzchanowski regarding the sale of her property located at Route 25A and Randall Road in Wading River, New York. In part, Paragraph "16" of the Rider to that October 16, 2002 contract of sale requires Manzi, at its sole cost and expense, to obtain a change of zone from the Town of Brookhaven from A-1 Residence to either PRC Residence or MF-1 Residence for multi-family condominiums. Further, under Paragraph 16, Manzi was required to "make prompt, truthful and diligent application to the Town Clerk of the Town of Brookhaven . . . to obtain said change of zone."

Manzi contends that irrespective of whether or not Mr. Pierzchanowski cooperated diligently with all aspects of the change of zone process, as required under Paragraph "4" of the 11/18/02 Agreement, such cooperation is of no consequence because the change of zone never actually occurred. Mr. Pierzchanowski contends, however, that Manzi breached its contract with Alice, in that Manzi never even applied for the change of zone, and that such breach by Manzi rendered it impossible for Mr. Pierzchanowski to perform his obligation to cooperate regarding the change of zone. Therefore, Mr. Pierzchanowski argues that Manzi should be estopped from collecting the remaining $100,000 paid by Manzi to Mr. Pierzchanowski. [*3]

In a contract action, when the intention of the parties is fully determinable from the language employed in the agreement, and there is no need to resort to evidence outside the written words to determine the intention of the parties, then summary judgment is proper (Long Island R.R. Co. v Northville Industries Corp., 41 NY2d 455; 393 NYS2d 925 [1977]). However, a motion for summary judgment should be denied if critical contractual language raises a question with respect to the true intent of the parties (Mayland v Craighead, 144 AD2d 344; 533 NYS2d 946 [2d Dept 1988]). In fact, "where the intent must be determined by disputed evidence or inferences outside the written words of the instrument, a question of fact is presented which warrants the denial of summary judgment" (Id., 144 AD2d at 346, 533 NYS2d at 948) (quoting, Boyarsky v Froccaro, 131 AD2d 710, 344 NYS2d 925 [2d Dept 1973]; see also, Aronson v Riley, 59 NY2d 770, 464 NYS2d 723 [1983]).

To defeat summary judgment, it is not enough for the opponent to merely show that an agreement is ambiguous, thereby permitting the introduction of parol evidence. The opponent must also disclose in evidentiary form the particular parol evidence, if any, on which it relies. Otherwise, there would only be documents to interpret, and it is the responsibility of the courts on a motion for summary judgment to resolve ambiguities appearing in written documents (Mallad Constr. Corp. v County Federal Sav. & Loan Assoc., 32 NY2d 285, 344 NYS2d 925 [1973]) (citations omitted). Thus, only where a question of intention may be determined by written agreements, the question is one of law, appropriately decided on a motion for summary judgment (Id).

In this case, the intention of the parties is not fully determinable from the language of the November 18, 2002 Agreement. The ambiguities in the Agreement, therefore, permit the introduction of parole evidence, namely, the facts and circumstances surrounding the contract of sale between Manzi Homes and Alice Pierzchanowski, as well as the alleged other agreements between Joe Manzi and Edward Pierzchanowski. These raise questions of fact for determination by a jury as to the intention of the parties when entering into the November 18, 2002 Agreement. Accordingly, since critical contractual language raises a question with respect to the true intent of the parties, the plaintiff's motion for summary judgment must be denied (Mayland v Craighead, 144 AD2d 344; 533 NYS2d 946 [2d Dept 1988]).

This constitutes the decision and order of this Court.

Dated: April 3, 2006

PETER H. MAYER, J.S.C.