Brady v 450 W. 31st Owners Corp.
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Brady v 450 W. 31st Owners Corp. 2008 NY Slip Op 31894(U) July 2, 2008 Supreme Court, New York County Docket Number: 0603741/2007 Judge: Marcy S. Friedman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 71712008 - . .. . .. - . .. . . . . . . [* 1 ] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART AT7 Justice 6 d 3 7gh7 INDEX NO. MOTION DATE -v- I MOTION SEQ. NO, wgF( 31s l 0 - (fL2 The following papers, numbered 1 to &y 9- MOTlONCAL.NO. were read on thla motion &/for PAPERS NUMBERED Notice of Moon t/ i . . I Answerlng Affidavits - Exhibits +?----- Replying Affidavits W I Upon the foregoing papers, it i ordered that this motion &c3Le+&--*s J. S. C. Check one: I 1 FINAL DISPOSITION Check if appropriate: / P N O N - F I N A L DISPOSITION 0 DONOTPOST 1 REFERENCE [* 2 ] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOFX - PART 57 PIIESEN? : Hon. Marcy $. Fricdman, JSC JAMES B M D Y and JANE BRADY, Jndcx No.: 603741/07 Plaint$s, DECISION/ORDER - against - 450 WEST 3 1 OWNERS COW., et al., Defen du n ts. This is an action for injunctive and . rpl the owncrs of tlic shares of stock allocatcd to a commercial unit on the 12 oor and roof of a cooperatively owned premises, seek to enjoin defendant 450 West 3 1 Owners Corp. ( Owners Gorp."), the coopcrative corporation, fiom sclling transfcrable development rights ( TDRs ) (or, as more coiimonly known, air rights ) to defendants Extcll Developlimit Company, Hudson Yards, LLC and Extell 31/10 LLC ( Extell ), the developer of an adjoining premises. Owners Corp. and Extcll cach movc for summary judgment dismissing the amended complaint. Plaintilfk cross-move loor partial suinmary judgment on the first through third causes of action of the corndaiiit. This court denied daintiffs Drior motion for a nrcliniinarv iniunction bv decision and order dated November 29, 2007, which was affirmed by thc Appcllate Division, First Deparlment, by ordcr datcd Dcccmbcr 20, 2007. Owncrs C o y . and Extell 31/10 LLC entered into a Sale and Purchase Agreement, dated August 23, 2007 ( contract of sale ), for the sale by Owncrs C o p . to Extell of Owners Corp. s [* 3 ] exccss dcvelopnient rights. It is uiidisputed that such excess developnient rights includc the air rights or I DRs above plaintiffs unit. The contract of sale has not yet closed. The first cause of action of plaintiffs amended cornplaint sccks an injunction enjoiiiing dcfcndants from consummating the contract of salc. The second cause of action seeks a judgnent declaring that the contract of sale is null and void. The third cause of action seeks a judgmcnt dcclariiig that tlnc rights purportedly conveyed by thc Contract of Salc bclong solcly to the 12 h Floor * * * aiid that the Cooperative Corporation caimot without the coiiseiit of the owiier of the 12 Floor sell or transfer aiiy portioii of these rights. (Amended Complaint, 7 79.) The fooui-th cause of action alleges that the conveyance madc by the contract of salc would unjustly eilrich Extell, and seeks iinposition of a constructive trust upon the conveyance. The filth cause of action alleges that consummation of the contract of sale would wrongfully take possessioii 01. plaintiffs space, and sccks a judgment ejecting defendants from possession of such spacc. The sixth cause of action seeks an injunction eiijoining Owners Coi-p. from breaching its fiduciaiy duty to plaintiffs. The seventh and final cause of action allcgcs that plaintiffs have the right, iinder an agreement with Owners Corp., to construct or extend structures on or above the roof, and seeks an injiinclion eiijoiiiing Extcll from interfering with this agreement. T seeking to enjoin the transfer of the TDRs, plaintiffs rely oii paragraph 7 of thc sccond n aiiiendineiit to Ofkring Plan which provides in full: The 12 floor and roof u n i t shall have, in addition to the utilization of the roof, the right to construct or extcnd structures upon thc roof or above Ilie same to the extent that may from time to time be pci-niitted uiider applicable law. The tlzreshold issuc on thcse motions is therefore whether this paragaph should bc constnicd as confeniiig air rights upon plaintiffs. Pagc -2- [* 4 ] It is well settled that the detemiination of whether a contract is ambiguous is one of law to be resolved by the court. (Matter of Wallace v GOO Partners Co., 86 NY2d 543, 548 [ 19951; W.W.W. Assocs., Tnc. v Giancontieri, 77 NY2d 157 [1990].) Moreover, the court should detcnninc from contractual language, without regard to extrinsic evidence, whether there is any ambiguity. (Chimart Assocs. v Paul, 66 NY2d 570, 573 [1986].) [Mlatters extrinsic to thc agrecment may not be considcrcd whcn thc intent of thc parties can be gleaned from the face o r the instrument. (Id.at 572-573 [internal citation and quotation marks omitted].) [ Wlhen parties set down their agrcenicnt in a clear, complctc docurncnt, their writing should * * * be enforced according l o its terms. (Vermont Teddv Bear Co., Inc. v 538 Madison Rcalty Co., 1 NY3d 470, 475 [2004] [internal quotation marks and citations omitted].) This rule is of special impoi-t in real property transactions where commercial certainty is a paramount concern, and wlicrc * * * the instrument was ncgotiatcd bctweeii sophisticated, counseled business people negotiating at arm s length. In such circumstances, courts should be extremely rcluctaiit to interpret an agrccmcnt as iniplicdly stating something which the parties have neglected to spccifically includc. (Id.[intcrnal quotation marks and citations omitted].) Applying these principles, the court finds that paragraph 7 is not ambiguous, and that it givcs plaintiffs thc right to build structures on or abovc thc roof but does not convey air lights to plaintiffs. It is undisputed that air rights existed and were well known in the rcal estate community in 1980 when the Offering Plan was amended to add paragraph 7. Had the parties, who were sophisticated busincss people, intended to convey or reserve air rights to the 12 floor and roo1 units, they could easily have expressly so provided. Indeed, plaintiffs thcniselves do not take thc positioii that thcy are the owners of the air rights. They clarify that they do not Page -3- [* 5 ] contend that the 12 hFloor and Roof Unit can sell or transfer these [TDR] rights to adjoining landowners, but * * * do contend that thc Cooperative Corporation cannot sell or transfer thcsc rights to anyone without [plaintiffs ] consent. (Brady Aff. h Support of. Cross-Motion [ Brady Aff. ], 7 51.) While plaintiffs thus do not dispute that the Cooperative Corporation is the owner of the TDRs, they contend that they control the development righls by virtue of paragraph 7 of the amended Olering Plan. (E, 52.) However, paragraph 7 is plainly not susceptiblc to the construction, advanced by plaintiffs, that they have the right to extend their existing pcnthousc 1 89), 1 structure by an additional 190,000 square feet (d, the square rootage of the air rights that were acquired by the Cooperative Corporation as a result of a changc in the zoning resolution approximately 25 years after plaintiffs predecessor acquired thc right to crcct structures on the roof pursuant to paragraph 7 of the amended Offering Plan. Thc court accordingly holds as a rnattcr of law that Owners Corp. is the owner of the TDRs that were conveyed by the contract of sale to Extcll, and that paragraph 7 01the second amendment to the Offering Plan does not convey or reserve the TDRs to plaintiffs. The first, second, and third causes o r action of plaintiffs amended complaint, all of which seek to invalidate the contract of sale, are therefore dismissed. The fourth and fifth causcs of action for a constnictivc tnist and judgment of ejectment arc not maintainable on the facts alleged. The sixth cause of action against Owners C o y . for breach of fiduciary duty and the seventh cause of action against Extell for an injunctioii also fail to state cognizable claims on thc facts allcgcd. hi so holding, the court does not reach the issue of whether the light which has been conveyed to plaintiffs - namely, to construct or extend structures upon the roof or above the samc to thc cxtcnt that may from time to time be permitted under applicable law Page -4- - has been or [* 6 ] may be impaired by Extell's proposed development. Taking the position that they are entitled to the broad dcclaration that they control all the air rights, plaintiffs do not, in the alternative, seek a more limited dcclaratioii as to whether specifically identified structures inay be erected on the roof. Nor on this record would thcrc be a basis for such relie ¬, as plaintiffs do not provide any factual details as to the particular stnictures they plan to erect on the roof. (Compare 40-56 Tenth Ave. LLC v 450 W. 14"'St. Corp., 22 AD3d 416 [ l " Dcpt 20051.) 'rhc branch of plaintiffs' inotion to dismiss defendants' counterclaims is held in abeyance pending hearing of plaintiffs' separately noticcd inotion to dismiss such counterclaims as moot. This coiistitutes the dccision and order of the court. Dated: New York, New York July 2, 2008 -" Page -5-
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