SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
161
CA 11-02577
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
THIRTY ONE DEVELOPMENT, LLC, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
JEFFREY COHEN, INDIVIDUALLY, AND THE GILL HOUSE
AND CHARTER HOUSE INN, LLC,
DEFENDANTS-RESPONDENTS.
MCMAHON, KUBLICK & SMITH, P.C., SYRACUSE (JAN S. KUBLICK OF COUNSEL),
FOR PLAINTIFF-APPELLANT.
JAMES R. MCGRAW, SYRACUSE, FOR DEFENDANT-RESPONDENT THE GILL HOUSE AND
CHARTER HOUSE INN, LLC.
Appeal from an order of the Supreme Court, Jefferson County (Hugh
A. Gilbert, J.), entered April 29, 2011. The order, among other
things, reaffirmed that plaintiff has no right to conduct an
inspection of the property at issue prior to closing.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia,
a declaration that the contract between plaintiff and defendant The
Gill House and Charter House Inn, LLC (Gill House) for the purchase of
certain real property is in full force and effect (purchase contract).
Defendants moved to dismiss the complaint pursuant to CPLR 3211 (a)
(1) and (7). During oral argument on the motion, the parties
requested that Supreme Court make a limited determination with respect
to plaintiff’s claim that it had a right to conduct an inspection of
the property before the closing (inspection claim). The court
concluded that the parties were bound by the express provisions of the
purchase contract, which precluded oral modifications and did not
provide plaintiff with a right to inspect the property and, according
to the order on appeal, issued a written decision to that effect. In
the order on appeal, the court “reaffirmed” that determination and
thereby effectively granted defendants’ motion in part by dismissing
plaintiff’s inspection claim. The court otherwise denied defendants’
motion. We affirm.
Contrary to plaintiff’s contention, the court properly granted
defendants’ motion insofar as it dismissed plaintiff’s inspection
claim because the purchase contract conclusively establishes as a
matter of law that plaintiff is not entitled to a pre-closing
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CA 11-02577
inspection of the property. “On a motion to dismiss pursuant to CPLR
3211, the court may grant dismissal when documentary evidence
submitted conclusively establishes a defense to the asserted claims as
a matter of law” (Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [internal
quotation marks omitted]). “Construction of an unambiguous contract
is a matter of law” (id.), and “[t]he best evidence of what parties to
a written agreement intend is what they say in their writing . . .
Thus, a written agreement that is complete, clear and unambiguous on
its face must be enforced according to the plain meaning of its terms”
(Greenfield v Philles Records, 98 NY2d 562, 569 [internal quotation
marks omitted]; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162;
FAC Cont. LLC v Yickjing567 LLC, 78 AD3d 1510, 1512). That rule is of
“special import in the context of real property transactions, where
commercial certainty is a paramount concern, and where . . . the
instrument was negotiated between sophisticated, counseled business
people negotiating at arm’s length” (Vermont Teddy Bear Co. v 538
Madison Realty Co., 1 NY3d 470, 475 [internal quotation marks
omitted]). As a result, “courts should be extremely reluctant to
interpret an agreement as impliedly stating something which the
parties have neglected to specifically include” (id. [internal
quotation marks omitted]).
Plaintiff contends that the actions of Gill House after signing
the purchase contract had the effect of unilaterally modifying the
terms of the contract and thus its verbal agreement to allow plaintiff
to inspect the property before closing should have been enforced. We
reject that contention. Here, the intention of the parties is clear
from the plain language of the purchase contract, and neither party
disputes that the contract does not expressly afford plaintiff the
right to a pre-closing inspection of the property. Inasmuch as the
purchase contract contains a merger clause that prohibits oral
modifications of its terms, we decline to enforce the separate verbal
agreement allegedly permitting plaintiff to inspect the property. We
have reviewed plaintiff’s remaining contentions and conclude that they
are without merit.
Entered: March 15, 2013 Frances E. Cafarell
Clerk of the Court