Castle at Bluehill, Inc. v. Town of Orangetown

189 A.D.3d 980

137 N.Y.S.3d 499

CASTLE AT BLUEHILL, INC., etc., et al., plaintiff-appellant- respondent,

v.TOWN OF ORANGETOWN, defendant third-party plaintiff-respondent-appellant;

Thomas Emmett Woods, et al., third-party defendants-appellants-respondents.

2019–00914

Index No. 32250/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted - October 13, 2020

December 9, 2020

Feerick Nugent MacCartney, PLLC, South Nyack, N.Y. (Donald J. Feerick, Jr., and Patrick A. Knowles of counsel), for plaintiff-appellant-respondent and third-party defendants-appellants-respondents.

Robert V. Magrino, Town Attorney, Orangeburg, N.Y. (Dennis D. Michaels of counsel), for defendant third-party plaintiff-respondent-appellant.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff and the third-party defendants appeal, and the defendant third-party plaintiff cross-appeals, from an order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated December 14, 2018. The order, insofar as appealed from, denied the third-party defendants' motion for summary judgment dismissing the third-party complaint. The order, insofar as cross-appealed from, denied the defendant third-party plaintiff's cross motion for summary judgment on the third-party complaint.

ORDERED that the appeal by the plaintiff from so much of the order as denied the third-party defendants' motion for summary judgment dismissing the third-party complaint is dismissed, without costs or disbursements, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511 ; Morales v. 1415, LLC, 171 A.D.3d 913, 98 N.Y.S.3d 335 ; Mixon v. TBV Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order is affirmed insofar as reviewed on the appeal by the third-party defendants, without costs or disbursements; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from, without costs or disbursements.

This matter involves a food and beverage concession at the Blue Hill Golf Course in the Town of Orangetown. In May 2011, the plaintiff won a Town license to operate the concession after the Town held a request for proposals (hereinafter RFP) process. The license agreement between the plaintiff and the Town, dated May 12, 2011, gave the plaintiff the right to operate the concession at the Blue Hill Golf Course for five years, subject to certain conditions. It also gave the plaintiff a conditional right to renew and continue operation of the concession after the expiration of the five-year period, provided that the plaintiff complied with certain terms in the contract, in which case the Town could not unreasonably refuse the plaintiff's extension option.

In June 2016, the plaintiff commenced this action alleging that the Town breached the license agreement by failing to honor its renewal option. Thereafter, the Town interposed an answer with counterclaims. The first counterclaim alleged that the plaintiff breached its contract with the Town by failing to pay license fees for the concession and water consumption fees for the caretaker's cottage, known as the White House, which was located some distance from the concession. In November 2016, the Town commenced a third-party action against Thomas Emmett Woods and Fiona M. Woods (hereinafter together the third-party defendants), the equitable owners of the plaintiff, alleging, inter alia, that they had executed a personal guaranty for the plaintiff's performance of its license agreement with the Town, and that they were personally liable for approximately $44,000 in arrears due and owing under the license agreement. The third-party defendants interposed an answer denying the material allegations of the complaint and asserting several affirmative defenses, including that the Town fraudulently misrepresented and/or fraudulently concealed that the charges to be paid under the license agreement included utilities consumed by the White House.

Following discovery, the third-party defendants moved for summary judgment dismissing the third-party complaint on the ground, inter alia, that the personal guaranty was void ab initio as the Town failed during negotiations to disclose material facts to the third-party defendants concerning the White House water supply and...