THE WALTON & WILLET STONE BLOCK, LL v. CITY OF OSWEGO COMMUNITY DEVELOPMEN

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

215
CA 15-00835
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.

THE WALTON & WILLET STONE BLOCK, LLC,
AND THOMAS J. MILLAR, PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

CITY OF OSWEGO COMMUNITY DEVELOPMENT OFFICE
AND CITY OF OSWEGO, DEFENDANTS-RESPONDENTS.

KIRWAN LAW FIRM, P.C., SYRACUSE (TERRY J. KIRWAN, JR., OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.

BOND, SCHOENECK & KING, PLLC, OSWEGO (DOUGLAS M. MCRAE OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Oswego County (James
W. McCarthy, J.), entered February 4, 2015. The order granted the
motion of defendants for summary judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

Memorandum: Plaintiffs appeal from an order that granted
defendants’ motion for summary judgment dismissing the complaint.
Plaintiffs commenced this action seeking specific performance of a
Contract for Purchase (contract) entered into between defendants as
sellers and plaintiff The Walton & Willet Stone Block, LLC (Walton)
and Fowler Gardella Construction, LLC (FGC) as buyers. FGC and
plaintiff Thomas J. Millar, in a joint venture, submitted a proposal
for the redevelopment of a building on property owned by defendants,
and defendants chose FGC and Millar as the preferred developers of the
property.

We agree with defendants that plaintiffs may not individually
seek enforcement of the contract without FGC. Plaintiffs and FGC had
a joint venture, and “the legal consequences of a joint venture are
equivalent to those of a partnership” (Gramercy Equities Corp. v
Dumont, 72 NY2d 560, 565). It is well settled that “ ‘a partnership
cause of action belongs only to the partnership itself or the partners
jointly, and that an individual member of the partnership may only sue
and recover on a partnership obligation on the partnership’s behalf’ ”
(Gmerek v Scrivner, Inc., 221 AD2d 991, 991). Thus, any breach of the
contract would relate to plaintiffs’ and FGC’s joint interest, and
plaintiffs cannot individually seek enforcement of the contract
without FGC (see e.g. Scott v KeyCorp, 247 AD2d 722, 724).
 -2- 215
CA 15-00835

Defendants met their initial burden of establishing their
entitlement to judgment as a matter of law by submitting the
resolution naming the joint venture of FGC and Millar as the preferred
developers of the property, the Option Agreement and the contract
listing Walton and FGC as the buyers, and the affidavit of Paul
Fowler, a managing member of FGC, averring that FGC was no longer
involved in any project relating to the property. Plaintiffs failed
to raise an issue of fact concerning whether FGC was a member of
Walton and thus in effect a plaintiff in the lawsuit (see generally
Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition to the
motion, plaintiffs submitted affidavits of Millar and Sean Gardella,
the other managing member of FGC, contending that FGC was a member of
Walton based on Gardella’s execution of a unanimous written consent.
Plaintiffs failed to produce the written consent, however, and
Millar’s and Gardella’s bare allegation that FGC is a member of Walton
is belied by, inter alia, Fowler’s affidavit and reply affidavit.
“[M]ere conclusions, expressions of hope or unsubstantiated
allegations or assertions are insufficient” to raise an issue of fact
(Zuckerman v City of New York, 49 NY2d 557, 562).

Entered: March 25, 2016 Frances E. Cafarell
Clerk of the Court