S & J Serv. Ctr., Inc. v Commerce Commercial Group, Inc.
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S & J Serv. Ctr., Inc. v Commerce Commercial Group, Inc. 2019 NY Slip Op 34205(U) February 4, 2019 Supreme Court, Westchester County Docket Number: 59714/2018 Judge: Linda S. Jamieson 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. NO. 59714/2018 [*FILED: 1] WESTCHESTER COUNTY CLERKINDEX 02/06/2019 12:0 16 eu111111e11ce the statmmy time pc:iod fut sppernl • 09 NYSCEF DOC. NO. 19 Disp_x_ of right (CPLR § 5513 [al), you are advised to 02/06/2019 serve a RECEIVED NYSCEF: copy of this order, with notice of entry, upon all parties. Seq. No._1_ Type _dismiss_ Dec SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. LINDA S. JAMIESON --------------------------------------x S & J SERVICE CENTER, INC., Index No. 59714/2018 Plaintiff, DECISION AND ORDER -againstCOMMERCE COMMERCIAL GROUP, INC., Defendant. --------------------------------------x The following papers numbered 1 to 6 were read on this motion: Notice of Motion, Affirmation, Memorandum of Law and Exhibits 1 Affirmation in Opposition 2 Memorandum of Law in Opposition 3 Supplemental Affirmation and Exhibit' 4 Notice of Rejection and Exhibit 5 Reply Memorandum of Law 6 Defendant brings this motion to dismiss the complaint pursuant to CPLR §§ 3211 (a) (1) and (7) (documentary evidence and failure to state a claim) in this breach of contract action. The 1While it is true that a party cannot submit multiple sets of opposition papers, plaintiff's second submission merely submitted to the Court a newly-released Appellate Division Decision, and is thus not improper. 1 of 7 INDEX NO. 59714/2018 [*FILED: 2] WESTCHESTER COUNTY CLERK 02/06/2019 12: NYSCEF DOC. NO. 19 facts are simple. RECEIVED NYSCEF: 02/06/2019 Plaintiff ("S&J") was a defendant in an unrelated case involving a company called Apache Oil Company ("Apache") . That case was settled at trial in December 2016. The parties to that action agreed that within six months of that date, S&J (or any corporate entity in which Steven and Joseph Pires were majority owners) would pay Apache $400,000 to buy out Apache's leasehold interest in a particular property. If S&J failed to do so, then Apache would continue to operate at the premises 1 and S&J would pay Apache $25,000 for legal fees. The $25,000 payment would not be due if S&J paid Apache $400,000 for the lease. S&J did not make the $400,000 payment to Apache. Thereafter, on May 26, 2017, plaintiff and defendant entered into a document entitled "Letter of Intent.• This is the document which plaintiff insists is a binding contract, and which defendant claims is merely an agreement to agree. The document provides, in relevant part, that defendant is the "Intended Lessee,• and that the "Apache lease can be Terminated [sic] upon payment in the sum of $400,000." The lease term provision states "10 years plus three 5 year options (total 25 years), commencing on the 1 st of the month after Apache vacates the premises.• The document further states that "A payment of $400,000 to terminate a [sic] Apache lease to be paid to Apache by CCG on or prior to June 9, 2017." This document contains other details about the 2 of 7 purported lease. It is signed by both parties. NO. 59714/2018 [*FILED: 3] WESTCHESTER COUNTY CLERKINDEX 02/06/2019 12:0 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/06/2019 About a week and a half later, on June 6, 2017, counsel for plaintiff - the same lawyer who represented plaintiff at the Apache trial - sent an email to a lawyer for America Petroleum LLC ("America") which stated "I've been informed that your firm is representing America Petroleum LLC in connection with the proposed lease of our client's service station in Hartstdale, NY. A $400,000 lump sum payment must be paid by 12/11/17 to the outgoing Tenant, Apache Oil Company, Inc. The email goes on to state that counsel had sent a proposed lease termination agreement to counsel for Apache. The email further stated that "Our respective clients' letter/memorandum of intent is also attached. It is my understanding that •it was executed in the form as annexed, but I do not have a copy of the executed document." A review of this letter of understanding demonstrates that it is the identical document sent to defendant in May, with "America" inserted in every place that defendant's name had been written. unsigned. The copy of the document submitted to the Court is Later on that day, counsel for plaintiff sent a "draft of the proposed lease" to counsel for America. The lease was never signed, and the $400,000 was never paid to Apache. litigation followed. This Notably, the complaint does not mention either the letter of intent or the proposed lease that plaintiff sent to America. 3 3 of 7 NO. 59714/2018 [*FILED: 4] WESTCHESTER COUNTY CLERKINDEX 02/06/2019 12:0 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/06/2019 Counsel for plaintiff states in his affirmation in opposition that the proposed lease to America "is at best inconclusive,• given his email stating that he did not have a signed copy of the letter of intent between S&J and America. Counsel further states in his affirmation that America "having originally been proposed by the defendant's officers and agents to be the named tenant does not in any manner defeat S & J's allegations relative to CCG [defendant] being thereafter selected by those same individuals (all on the defendant's side of the case) and the undeniable fact that CCG was the contracting party.• This statement is illogical and, frankly, incorrect. factually According to the documentary evidence submitted to the Court, plaintiff sent the letter of intent to defendant in May, but did not send the letter of intent to America - along with a proposed lease - until June. Assuming, arguendo, that counsel's statement that defendant and America have related officers and directors is accurate, the documentary evidence establishes that they first posited that defendant would enter into a lease transaction with plaintiff, yet for whatever reas9n, changed course and "thereafter selected" America to do so instead. The only draft lease is with America, not defendant. Ultimately, neither company signed a lease with plaintiff or paid the $400,000 to Apache. 4 4 of 7 NO. 59714/2018 [*FILED: 5] WESTCHESTER COUNTY CLERKINDEX 02/06/2019 12:0 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/06/2019 "At this procedural point in the litigation process, we accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. A defense based on documentary evidence will suffice to extinguish an action at this early stage only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Venture Silicones, Inc. v. Gen. Elec. Co., 14 A.D.3d 924, 788 N.Y.S.2d 479, 480 (3d Dept. 2005). Defendant argues that the evidence of plaintiff's negotiations with America demonstrates that there was no "meeting of the minds" between defendant and plaintiff. (It also argues that the stipulation between S&J and Apache contained certain obligations for S&J that could not be fulfilled by (either of) the letter(s) of intent.) The Court agrees. Not only is the language of the letter of intent tentative and/or conditional, but it is clear from the documentary evidence that plaintiff itself did not believe that it had a binding agreement with defendant. Less than two weeks after it signed the letter of intent with defendant, plaintiff sent the exact same letter of intent to America; if it had already entered into a binding contract with defendant, plaintiff would have breached it by doing so. In the email to America, plaintiff stated that it had 5 5 of 7 NO. 59714/2018 [*FILED: 6] WESTCHESTER COUNTY CLERKINDEX 02/06/2019 12:0 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/06/2019 just sent a proposed lease termination agreement to Apache, and then later that day, it sent a proposed lease agreement to America. This is sjgnificant because (1) if plaintiff had had a binding contract with defendant, it would have breached it by sending the lease; (2) plaintiff never sent a proposed lease agreement to defendant; (3) given that plaintiff was using the same letter of intent, the fact that plaintiff sent a proposed lease to America indicates that plaintiff itself believed that a lease was required, and that the letter of intent was insufficient; and (4) plaintiff stated that it believed that America had signed the letter of intent, which means that if true, plaintiff would have had two signed letters of intent. The letter of intent thus cannot possibly have been the binding contract that plaintiff now asserts that it is. Accordingly, the Court grants defendant's motion, and dismisses the complaint in its entirety. The foregoing constitutes the decision and order of the Court. Dated: White Plains, New York Je11ertuy !I-, ~ 2019 ~~ Justice of tne Supreme Court 6 6 of 7 NO. 59714/2018 [*FILED: 7] WESTCHESTER COUNTY CLERKINDEX 02/06/2019 12:0 NYSCEF DOC. NO. 19 To: RECEIVED NYSCEF: 02/06/2019 Cohn & Spector Attorneys for Plaintiff 34 S. Broadway, #714 White Plains, NY 10601 Rodriguez-Mccloskey PLLC Attorneys for Defendant 300 Cadman Plaza W., 12~ Fl. Brooklyn, NY 11201 7 7 of 7
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