Invesco Affiliates Ltd. v Tritec Dev. Group, LLC
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Invesco Affiliates Ltd. v Tritec Dev. Group, LLC 2016 NY Slip Op 32846(U) February 9, 2016 Supreme Court, Suffolk County Docket Number: 602816/2015 Judge: Jerry Garguilo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: SUFFOLK COUNTY CLERK 02/09/2016 02:57 PM 1] NYSCEF DOC. NO. 180 INDEX NO. 602816/2015 RECEIVED NYSCEF: 02/09/2016 SHORT FORM ORDER E- ILE INDEX NOS. 6028 16/2015 & 606864/2015 SUPREME COURT- STATE OF NEW YORK COMMERCIAL DIVISION IAS PART 48 - SUFFOLK COUNTY PRESENT: INDEX NO. 602816/2015 HON. JERRY GARGUILO SUPREME COURT JUSTICE INVESCO AFFILIATES LIMITED, 6028 16/20 15 Plaintiff, -against- ORIG. RETURN DATE: 9/16/15 FINAL SUBMITTED DATE: 12/9/15 MOTION SEQ#002 MotD #003 MG INDEX NO. 606864/2015 TRJTEC DEVELOPMENT GROUP, LLC, TRJTEC BULDING COMP ANY, INC., TRJTEC REAL ESTATE COMPANY, INC. , and 201 W. BROADWAY PJ, LLC., ORIG. RETURN DATE: 9/30/15 FINAL SUBMITTED DATE: 12/9/15 MOTION SEQ#OOI MOTION: MG Defendants. 606864/2015 201 W.BROADWAYPJ, LLC, Plaintiff, -againstINVESCO AFFILL ATES LIMITED., Defendant. ATTORNEYS FOR INVESCO: RUSKIN MOSCOU FALTTSCHEK PC 1425 EAB PLAZA,EAST TOWER UNIONDALE NY 11 556 516-663-6600 ATTORNEYSFOR201BROADWAY ANDTRITEC: INVESCO AFFILIATES LIMITED, Counterclaim/Third Party Plaintiff, -against- SINNREICH KOSA KOFF & MESSINA 267 CARLETON A VE., 3RD FLOOR CENTRAL ISLIP, NY 11 722 63 1-650-1 200 201 W. BROADWAY PJ, LLC, Counterclaim Defendant, and TRJTEC DEVELOPMENT GROUP, LLC, TRITEC BUILDING COMPANY, INC., and TRJTEC REAL ESTATE COMPANY, INC., Third-Party Defendants. Before the Court comes the Plaintiff, Invesco Affi liates Limited, seeking an Order (index no. 602816-15 mot. seq. 002) pursuant to CPLR § 602(a) to consolidate this action with another action pending in the Supreme Court of Suffolk County (20 I West Broadway PJ, LLC v. Invesco Affil iates Ltd. , at index no. 606864/2015). Both cases spring from a [* 2] INVESCO AFFILIA TES Ml/MITED MV. TRITEC DEVELOPMENT GROUP, LLC, ETAL INDEX NO.: 60281612015 PAGE2 prospective project in the Port Jefferson area. The action sought to be consolidated seeks to prove, enforce and declare an arrangement between Invesco Affi liates, Tritec Development Group, LLC and 201 West Broadway PJ, LLC. That arrangement is alleged to be a j oint venture. The first action wi ll be referred to as the Invesco action. Invesco is a New York Corporation owned solely by Mr. and Mrs. Samir Nizam. Invesco owns real property located at 201 West Broadway in the downtown Port Jefferson area and has owned this property for approximately twenty (20) years. In 2012, subsequent to obtaining preliminary site plan approval for a mid-sized project on the property, Invesco became acquainted with Tritec, a seasoned, statured developer. Invesco recognized Tritec as an entity which could, through its expertise, obtain permission for the development of a greater yield on the property. Invesco alleges in the action sought to be consolidated that a joint venture agreement exists between it and Tri tee as concerns their relative stakes in the project. Tritec defendants deny and contest the existence of a joint venture as well as any contractually corroborated equity stake in the project. The Court has considered the following in connection with its determination: Index No.: 60816/2015 Motion Sequences 002 and 003 l. 2. 3. 4. 5. Plaintiffs Notice ofMotion, Affirmation In Support ofMotion To Consolidate inclusive of Exhibits A through J and Memorandum of Law In Support; Defendants' Affirmation In Opposition of Jarrett Behar to Motion To Consolidate, inclusive of Exhibits 1 and 2 and Memorandum of Law In Opposition To Motion To Consolidate; Plaintiffs Reply Memorandum of Law In Further Support; Defendants' Notice of Motion for Summary Judgment on Plaintiff 201 West Broadway PJ LLC's First Cause of Action and Dismissing All of the Defendant's Counterclaims and Third-Party Complai nt, Affidav.it of Robert Coughlan In Support of Motion For Summary Judgment, inclusive of Exhibits A through J, Affirmation of Jarrett M. Behar inclusive of Exhi bits l through 3, Defendants' Statement Pursuant To Commercial Division Rule 19-a In Connection with Motion For Summary Judgment and Memorandum of Law In Support; Plaintiffs Affirmation In Opposition by Nonnan R. Cerull o, inclusive of Exhibits 1 through 32, Memorandum of Law of Invesco Affiliates in Opposition To Motion For Summary Judgment, Plaintiffs Memorandum of Law In Opposition To Motion For Summary Judgment, Plaintiffs Response [* 3] INVESCO AFFILIA TES MLIMITED MV. TRITEC DEVELOPMEN T GROUP, LLC, ET AL INDEX NO.: 60281612015 PAG£3 6. To Defendants' Statement Pursuant To Rule 19-a; and Defendants' Reply Affirmation In Further Support of Motion For Summary Judgment with Exh ibits 1 and 2 and Memorandum of Law In Reply;' Index No. 606864/20 15 Motion Sequence 001 7. 8. 9. Notice of Motion for Summary Judgment on Plaintiffs First Cause of Action for Specific Performance, Affidavit of Robert J. Coughlan In Support, inclusive of Exhibits A through L, Affirmation of Jarett Behar In Support w ith Exhibits 1 through 5 and Memorandum Of Law In Support; Affirmation In Opposition by Norman R. Cerullo inclusive of Exhibits 1 through 32, Affidavit ofSamir Nizam In Opposition and Memorandum of Law T Opposition; and n Reply Affirmation of Jarett M. Behar In Further Support, with Exhibits 1 and 2 and Memorandum of Law In Reply. 2 At issue is a contract of sale between Invesco and 201 West Broadway, PJ, LLC for a sale of Invesco's Port Jefferson property. That contract is evidence in both actions. The Grantee therein (201 West Broadway) petitions the Court for summary judgment specifically enforcing that Contract. A review of the contract shows that 201 West Broadway and Invesco are parties to a contract of sale, dated as of January 31, 2013, whereby Invesco agreed to sell the property at 201 West Broadway and that 201 West Broadway agreed to purchase the property from Invesco, for the sum of 3.9 Million Dollars. Invesco and 201 West Broadway were represented by independent counsel in connection w ith the negotiation and execution of that contract. Section 11 of the contract provides that if Invesco fails to close, 20 1 West Broadway has the right to either cancel the contract or seek specific performance. The contract contains what is commonly known as a merger clause at section 17.3. That clause reads as follows: This Contract embodies and constitutes the entire understanding between the parties w ith respect to the transaction contemplated herein, and all prior agreements, understandings, representations I. The Court annexes hereto an inventory of all submissions considered in Index No. 602816/2015. 2. The Court annexes hereto an inventory of all submissions considered in Index No. 606864/20 15 [* 4] INVESCO A FF!l/A TES Ml/MITED MV. TRITEC DEVELOPMENT GROUP, LLC, ET Al INDEX NO.: 60281612015 PAGE4 and statements, oral or written, are merged into this Contract. Neither this Contract, nor any provisions hereof may be waived, modified, amended, discharged or terminated except by an instrument signed by the party against whom the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. On or about June 15, 2015, 20 I West Broadway, issued a time of the essence letter scheduling a closing for the property on June 30, 2015. The time of the essence letter warned Invesco "if it does not perform and close on that time and date the same shall constitute a default under the Contract." The Court must determine the effect of the merger clause in connection w ith the disputed joint venture. The Court of Appeals clearly stated as far back as 1894, that a party who del ivers a signed written contract to the other party may not claim that an oral condition was added at the time of delivery, precluding its effectiveness, or enforcement (Blewitt v. Boorum, 142 N.Y. 357, 37 N.E. 119 (1894]). As articulated by the Court of Appeals in Blewitt, a delivery of the signed contract to the other party itselfrenders a claimed condition unavailable: The rule in this State regarding deeds conveying real estate, or an interest therein, or agreements for the sale thereof, is that a delivery cannot be made to the grantee or other party thereto conditionally or as is said in escrow, and when delivered to a party the delivery operates at once and the condition is unavailable (id at 363 , 37 N.E. 119 citing Gilbert v. The North American Fire Ins. Co., 23 Wend. 43 [ 1840]. See Torres v. D'Alesso, 80 A.D.3d 46, 910 N.Y.S.2d at 52. General Obligations Law § 5-703 reflects important policy concerns. Real estate transactions are required to be in writing to ensure clarity and certainty, and to avoid fraud (see Villano v. GNC Homes, 46 A.D.2d 907, 362 N.Y.S.2d 198 (1974]. As such, the D'Alesso (infra) court noted: Unlike other types of business transactions, real estate sales contracts are drawn up and executed only after all terms have been negotiated and finalized and the writing is complete. Any conditions precedent are normally included in those written [* 5] I VESCO AFFILIATES Ml/MITED MV. TRITEC DEVELOPMEN T GROUP, LLC, ET A L INDEX NO.: 60281612015 PAGES terms, such as mortgage contingency clauses found in standard form real estate contracts making the d~al contingent on the buyer's obtaining the contemplated mortgage loan. The writing is expected to represent the final version of the parties' agreement. If we permit interference with enforcement of a written and fully executed real estate sales contract based on a claimed oral condition precedent to its effectiveness, the need for certainty and finality at the heart of the statute of frauds is undermined. Cases in the tradition of Hicks v Bush, I 0 NY2d 488, in wh ich parties have been allowed to prove claimed oral conditions precedent to the effectiveness of a contract, have most frequently involved an underlying contract that was not required to be in writing, or circumstances in which there was no particular reason to object to part of the agreement being oral while the rest was written. (emphasis added) The words "joint venture" or reasonable interpretive language, do not appear in the contract. The merger clause presented in the matter at bar represents the entirety of agreement between the parties as concerns the transfer of title. Therefore, the petition seeking specific performance is GRANTED. Invesco alleges that a joint venture agreement, in fact, exists between it and the Defendant Tritec. An oral agreement may be sufficient to create a joint venture , and the statute of frauds is generally inapplicable fo r such an agreement. As the alleged joint venture consists of an agreement to perform and share, which is incapable of being performed within one year, it violates the statute of frauds and cannot be deemed a condition of the land sale contract (see JR. Loftus, Inc. v. White, 85 N.Y.2d 874, 626 N.Y.S.2d 52 and Unicorn Enterprises, Ltd. v. Stonewall Contracting Corp., Supreme Court, Appellate D ivision, Second Department, New York, 232 A.D.2d 404. "The essential elements [of a joint venture] are an agreement manifesting the intent of the parties to be associated as joint venturers, a contribution by the coventurers to the joint undertaking (i.e., a combination of property, financial resources, effort, ski ll or knowledge), some degree of joint proprietorship and control over the enterprise, and a provision for the sharing of profits and losses." Natuzzi v. Rabady, 177 A.D.2d 620, 622 (2d Dep't 1991); see also Kaufman v. Torkan, 51A.D.3d977, 979 (2d Dep't 2008) (same); Tilden ofNew Jersey, Inc. v. Regency Leasing Sys., Inc., 230 A.D.2d 784, 786 (2d Dep't 1996). The existence of a joint venture agreement is essential to a finding of~ joint venture [* 6] INVESCO AFFILIATES MLIMITED MV. TRJTEC DEVELOPMENT GROUP, LLC, ET Al INDEX NO.: 60281612015 PAGE6 relationship and not every agreement qualifies as a joint venture. "Ifthere was no agreement as to the manner in which profits and losses were to be shared, the agreement between the parties [does] not create a joint venture ... " Natuzzi, 177 A.D.2d at 622. Absent such an agreement, there is no joint venture. Kaufman v. Torkan, 51 A.D.3d 977, 979 (2d Dep't 2008). Additionally, Unicorn Enterprises, infra., pronounces the well-known tenet of law that any contract with an anticipated duration of more than one year must be in writing in order to create a joint venture. In the matter at bar, there is no specific document executed by the parties, which binds them to any identifiable joint venture agreement. Instead, Invesco presents a trail of arguably parol evidence that it alleges, at best, communications concerning some participation between it and Tritec. However, nothing submitted can be construed to conform to the requirements of the Statute of Frauds. Accordingly, it is, ORDERED ADJUDGED AND DECREED as follows: I. 2. 3. 20 I W. Broadway PJ, LLC's petition for specific performance is GRANTED. The Contract of Sale shall be consummated. The parties are directed to close the transaction within thirty (30) days of the date of this Order with Notice of Entry; and All claims by Invesco asserting a joint venture agreement and all other claims by Invesco for relief are DENIED and the actions DISMISSED. The consolidation petition is deemed moot. The foregoing constitutes the decision and ORDER of this Court. Dated: February 9, 2016
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