Littleton Construction Ltd., Appellant,v.Huber Construction, Inc. et al., Respondents.BriefN.Y.May 5, 20160 To be Argued by: MICHAEL B. POWERS, ESQ. Time Requested for Argument: (15 Minutes) STATE OF NEW YORK Court of Appeals APL-2015-00063 LITTLETON CONSTRUCTION LTD., Appellant, vs. HUBER CONSTRUCTION, INC. and LITTLETON/HUBER JOINT VENTURE, Respondents. Appellate Division Docket No. CA 14-00818. Erie County Index No. 2010-011763. BRIEF FOR RESPONDENTS HUBER CONSTRUCTION, INC. and LITTLETON/HUBER JOINT VENTURE PHILLIPS LYTLE LLP Attorneys for Respondents Huber Construction, Inc. and Littleton/Huber Joint Venture One Canalside 125 Main Street Buffalo, New York 14203-2887 Telephone: (716) 847-8400 Facsimile: (716) 852-6100 MICHAEL B. POWERS, ESQ. WILLIAM J. SIMON, ESQ. Of Counsel Date of Completion: September 30, 2015. BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 - i - CORPORATE DISCLOSURE STATEMENT Defendant-Respondent Huber Construction, Inc. states that it has no parents or affiliates, and that its subsidiaries are Boxhorn Division Huber Construction, Inc., and United Lab Products Division. It has an interest in defendant-respondent Littleton/Huber Joint Venture. Defendant-Respondent Littleton/Huber Joint Venture states that it has no subsidiaries or affiliates. - ii - TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT .............................................. i TABLE OF AUTHORITIES ....................................................................... v QUESTIONS PRESENTED ....................................................................... 1 PRELIMINARY STATEMENT .................................................................. 2 STATEMENT OF FACTS .......................................................................... 4 A. The parties ................................................................................ 4 B. The parties’ agreements .............................................................. 4 1. The Boxhorn MOU ................................................. 4 2. The parties replace the Boxhorn MOU with the J.V. MOU .................................................. 6 3. The J.V. Operating Agreement ................................. 8 4. Plaintiff produces a forged “agreement” .................... 9 C. Huber’s right to its 9% Management Fee is further confirmed by Plaintiff’s preparation, approval, signing, and submission of bids for each of the BPS projects .................................................................................... 14 D. The parties resolved Plaintiff’s continuing complaints via a written accord and satisfaction ......................................... 15 ARGUMENT APPLICABLE LEGAL STANDARD ............................ 16 THE APPELLATE DIVISION CORRECTLY HELD THAT THE J.V. MOU UNAMBIGUOUSLY ENTITLES HUBER TO A 9% MANAGEMENT FEE FOR EACH OF THE BPS 195, 205, AND 84 PROJECTS ............................................................................. 16 - iii - PLAINTIFF ADMITS THAT HUBER NEVER AGREED TO SHARE ITS MANAGEMENT FEE AND THAT NO AGREEMENT OR OTHER DOCUMENT EXISTS TO SUPPORT PLAINTIFF’S CLAIM TO A SHARE OF THAT FEE ........................................................................................ 17 THE APPELLATE DIVISION CORRECTLY HELD THAT THE FRAUDULENT AGREEMENT IS VOID AND UNENFORCEABLE AGAINST HUBER .................................................................................. 18 THE APPELLATE DIVISION CORRECTLY HELD PLAINTIFF’S PURPORTED NEED FOR EXTRINSIC EVIDENCE TO BE WITHOUT MERIT ................................................................................... 22 A. The J.V. MOU is clear .................................................... 22 B. Extrinsic evidence is not required to authenticate copies of original documents ........................ 25 C. Plaintiff’s claim would fail even if extrinsic evidence were considered ................................................ 27 1. Plaintiff admits that it knew Huber’s 9% Management Fee was included in the bid specification sheets, bids and contracts Plaintiff reviewed, approved and signed on behalf of the J.V. ............................................... 27 2. Plaintiff operated in accordance with the J.V. MOU, accepted its benefits and should be estopped from denying its terms .............. 28 THE PARTIES’ OCTOBER 19, 2009 ACCORD AND SATISFACTION RESOLVED ANY DISPUTE OVER HUBER’S MANAGEMENT FEE ............... 31 - iv - A. Plaintiff has been paid for all of the expenses it seeks in this litigation ...................................................... 34 CONCLUSION ...................................................................................... 35 - v - TABLE OF AUTHORITIES Page(s) Cases Angerosa v. White Co., 248 A.D. 425 (4th Dep’t 1936), aff’d, 275 N.Y. 524 (1937) ....................... 27 Bingham v. New York City Transit Authority, 99 N.Y.2d 355 (2003) ............................................................................ 26 Chamberlain v. Amato, 259 A.D.2d 1048 (4th Dep’t 1999) .......................................................... 25 Chautauqua Cnty. Fed’n of Sportsmens Club, Inc. v. Caflisch, 15 A.D.2d 260 (4th Dep’t 1962) ............................................................. 18 Comerica Bank, N.A. v. Benedict, 39 A.D.3d 456 (2d Dep’t 2007) .............................................................. 25 Conboy, McKay, Bachman & Kendall v. Armstrong, 110 A.D.2d 1042 (4th Dep’t 1985) .......................................................... 31 Cooper v. City of New York, 81 N.Y.2d 584 (1993) ............................................................................ 26 Decker v. Schildt, 100 A.D.3d 1339 (1st Dep’t 2012) .......................................................... 24 Denburg v. Parker Chapin, 82 N.Y.2d 375 (1993) ............................................................................ 31 Dodds v. McColgan, 222 A.D. 126 (1st Dep’t 1927) ................................................................ 29 Faison v. Lewis, ___ N.Y.3d ___, 2015 WL 2183712 (2015) ............................................. 19 Foley Prods., Inc. v. Singer Corp., 133 A.D.2d 531 (4th Dep’t 1987) ........................................................... 16 - vi - Gilbert Frank Corp. v. Fed. Ins. Co., 70 N.Y.2d 966 (1988) ............................................................................ 16 Gui’s Lumber & Home Ctr., Inc. v. Mader Constr. Co., 13 A.D.3d 1096 (4th Dep’t 2004) ...................................................... 19, 22 Haynes v. Haynes, 83 N.Y.2d 954 (1994) ............................................................................ 26 Hyna v. Reese, 52 A.D.3d 1254 (4th Dep’t 2008) ........................................................... 24 Kwang Hee Lee v. ADJMI 936 Realty Assocs., 46 A.D.3d 629 (2d Dep’t 2007) ......................................................... 19, 20 La Rue v. Crandall, 254 A.D.2d 633 (3d Dep’t 1998)............................................................. 25 Mencher v. Weiss, 306 N.Y. 1 (1953) ............................................................................. 28, 29 Mohertus Trading Co. v. United Parcel Serv. Co., 160 Misc. 2d 259 (1st Dep’t 1994) .......................................................... 27 Niagara Foods, Inc. v. Ferguson Elec. Serv. Co., 111 A.D.3d 1374 (4th Dep’t 2013) .......................................................... 22 Opals on Ice Lingerie v. Body Lines Inc., 320 F.3d 362 (2d Cir. 2003) ............................................................... 19, 20 Orlosky v. Empire Sec. Sys., Inc., 230 A.D.2d 401 (3d Dep’t 1997)........................................................ 19, 20 Paltrow v. Town of Lewisboro, 199 A.D.2d 372 (2d Dep’t 1993)............................................................. 16 R.A.C. Holding v. City of Syracuse, 258 A.D.2d 877 (4th Dep’t 1999) ........................................................... 29 Rechlin v. Allweather Contrs., 298 A.D.2d 907 (4th Dep’t 2002) ........................................................... 24 - vii - Sales v. Crimmen, 112 A.D.2d 49 (4th Dep’t 1985) ............................................................. 16 Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639 (1994) ............................................................................ 25 Svenska Taendsticks Fabrik Aktiebolaget v. Bankers Trust Co., 268 N.Y. 73 (1935) ........................................................................... 28, 29 Tikvah Realty, LLC v. Schwartz, 43 A.D.3d 909 (2d Dep’t 2007) ......................................................... 19, 20 Town of Massena v. Niagara Mohawk Corp., 45 N.Y.2d 482 (1978) ............................................................................ 31 QUESTIONS PRESENTED 1. Did the Appellate Division err in dismissing plaintiff- appellant Littleton Construction, Ltd.’s (“Plaintiff”) claim for a share of defendant-respondent Huber Construction, Inc.’s (“Huber”) 9% Management Fee based upon an admittedly forged “agreement” that Huber never signed? Answer: No. Plaintiff admitted that the purported “agreement” was an “altered” “cut-and-paste job” and does not dispute that Huber never signed it. Plaintiff has also conceded that Huber did not agree to share its Management Fee with Plaintiff and never signed any agreement or other document which provides otherwise. 2. Can Plaintiff recover on its claim for a share of Huber’s 9% Management Fee as reimbursement for its purported overhead costs, where the claim was resolved in a written agreement pursuant to which Plaintiff was paid $1,790 per month in satisfaction of all of its claims for overhead costs? Answer: No. While the Appellate Division did not reach this issue, it provides an independent basis for affirmance. - 2 - PRELIMINARY STATEMENT Huber and defendant-respondent Littleton/Huber Joint Venture (“J.V.”) (collectively, “Defendants”) submit this brief in opposition to the appeal taken by Plaintiff from the Memorandum and Order (“Order”) of the Appellate Division, Fourth Department that dismissed Plaintiff’s breach of contract claim seeking a share of Huber’s 9% Management Fee. (Plaintiff’s Record on Appeal [“R:”] 4a-5a).1 Plaintiff commenced this action on November 8, 2010, alleging one cause of action for an accounting. (R: 29-31). After a detailed accounting confirmed that Huber had correctly calculated and applied all payments and expenses to each of the J.V.’s Buffalo Public Schools (“BPS”) projects (R: 59), Plaintiff withdrew its complaint. Plaintiff filed its amended complaint on November 27, 2012 alleging four entirely new causes of action. (R: 62-70). Defendants moved for summary judgment after discovery was complete. The Supreme Court, Erie County (Hon. John A. Michalek, J.S.C.) granted Defendants’ motion in part, dismissing three of Plaintiff’s four causes of action. (R: 8-18). 1 Record citations to pages followed by the letter “a” (e.g., R: 4a-5a) refer to the section of Plaintiff’s Record on Appeal for “Additional Papers to the Court of Appeals.” - 3 - As to Plaintiff’s surviving breach of contract claim (second cause of action), Plaintiff conceded that the parties’ Memorandum of Understanding Littleton/Huber Joint Venture (“J.V. MOU”) provides Huber with the 9% Management Fee (R: 151), but alleged that Huber entered into a separate agreement to share that fee with Plaintiff. Plaintiff attached a copy of this purported fee sharing “agreement” to its Amended Complaint. (R: 67-70). Plaintiff bases its remaining claim exclusively on this “agreement.” (R: 63). Subsequent to filing its Amended Complaint, Plaintiff admitted that the purported fee sharing “agreement” was “altered” and that he knew it at the time (R: 170); that Huber never agreed to share its Management Fee with Plaintiff (R: 256-58); and that no agreement or other document exists which states that Huber would share its Management Fee with Plaintiff (R: 256). Plaintiff’s counsel ultimately conceded that the purported fee sharing “agreement” was a “cut-and-paste job.” (R: 17). In addition, Plaintiff has never disputed that Huber did not sign this purported “agreement.” (R: 299- 300). The Trial Court denied summary judgment on Plaintiff’s breach of contract claim, finding an issue of fact whether Plaintiff created the “cut and paste” forgery. (R: 17). Defendants appealed. Plaintiff did not appeal the - 4 - dismissal of its other three causes of action. The Appellate Division reversed and dismissed Plaintiff’s remaining claim. (R: 4a-5a). Two justices dissented. STATEMENT OF FACTS A. The parties Plaintiff is a New York corporation owned by Mr. Quentin Littleton. (R: 552; 62). Huber is a small, locally owned construction company doing business in Western New York for the past eighty years. (R: 292). The J.V. is a New York joint venture formed by Plaintiff and Huber. B. The parties’ agreements 1. The Boxhorn MOU Plaintiff and Huber formed the J.V. by entering into a memorandum of understanding entitled “Memorandum of Understanding Littleton/Boxhorn Div. Joint Venture” (the “Boxhorn MOU”), which Mr. Littleton and Mr. Mark Schober, Huber’s President, signed on November 27, 2007. (R: 128-29; 321-24). Boxhorn is a division of Huber. (R: 290). The Boxhorn MOU set forth the parties’ respective duties and responsibilities as members of the J.V. Huber was to act as the “backbone” of the J.V., to handle all its overhead, administrative and management tasks, and to bear all losses in return for 49% of the profits (if any) and a management fee. (R: 129-30; 132; 321-24). The management fee was agreed to be a percentage - 5 - between 6% and 15% of each project contract amount and was to be determined by Huber for each project. (R: 130; 321). Plaintiff was to receive 51% of any profits realized on each project, $20.00 per hour for any work Mr. Littleton performed and reimbursement for its costs and expenses. (R: 321-22). Plaintiff was also insulated from any loss (R: 322). The Boxhorn MOU was revised, at Plaintiff’s request and as reflected in handwritten notes on the document, to increase Mr. Littleton’s hourly rate from $20.00 per hour to $32.00 per hour and to increase Plaintiff’s share of any profits to 55%. Both parties initialed those revisions, and the first page of the Boxhorn MOU was marked “Revised 12/20/07 [Initials]” to confirm that it had been modified. (R: 321). As provided in the Boxhorn MOU and attached rider, Huber set its management fee for the BPS 27 project at 10%. (R: 130; 323). A rider to that effect was executed by both parties on November 27, 2007. (R: 323). At Plaintiff’s request, Huber reduced its fee to 9%. (R: 130-31). A rider to that effect was executed by Mr. Littleton on December 21, 2007, and by Mr. Schober on December 26, 2007 (the “BPS 27 Rider”). (R: 131-32; 324). - 6 - 2. The parties replace the Boxhorn MOU with the J.V. MOU Approximately one month after signing the Boxhorn MOU, and before the J.V. submitted bids on the BPS 195, 205, and 84 projects, the parties executed a new agreement – the J.V. MOU. (R: 325-28). The J.V. MOU incorporated the changes the parties had initialed on the Boxhorn MOU, including the various elements of Plaintiff’s increased compensation. Mr. Littleton signed the J.V. MOU on December 21, 2007, and Mr. Schober signed it on December 28, 2007. (R: 327; 152). As with the Boxhorn MOU, the J.V. MOU provided Plaintiff with 55% of the profits (if any), $32.00 per hour for any work Mr. Littleton performed and reimbursement for Plaintiff’s expenses. (R: 325-27). Plaintiff’s expenses were paid by the J.V. as they were incurred. (R: 298). Plaintiff again bore no risk of financial loss on any BPS project. (R: 327). The J.V. MOU also provided that Huber would remain the “backbone” of the J.V., would be responsible for the majority of J.V. tasks, would handle all overhead, management and administrative responsibilities, would provide all financial backing and capital for all J.V. projects, would receive 45% of the profits (if any) and would bear the risk of loss on each project. (R: 325-28; 297-98). - 7 - Unlike the Boxhorn MOU, which allowed Huber to charge a Management Fee for each BPS project within a 6% – 15% range, the J.V. MOU provided Huber a flat 9% Management Fee for all J.V. projects (“Management Fee”). (R: 151; 298; 327). Mr. Littleton testified that Huber was entitled to this fee: Q. Okay. And it was agreed in this document [the J.V. MOU] that Huber would be paid nine- percent of the contract value for providing the home office management services and flat costs, correct? A. Yes. (R: 151). It was also agreed that the J.V. MOU would apply to “each” and “all” construction projects obtained by the J.V. – e.g.: (i) “Participation in the bidding process for each project as the bid is prepared” (R: 325); (ii) “[C]onsideration shall be given for truck and cell phone use for each project” (R: 326); (iii) “Provide all bonding, insurance and capital as required on all joint venture projects” (R: 326); (iv) “Any on-site costs will be paid for by this joint venture before determining the profit for each project” (R: 326); and (v) “All profit (loss) will be determined after the final costs are identified for each completed project” (R: 327). - 8 - (Emphasis added). Mr. Littleton agreed that the J.V. MOU was not limited to BPS 27 or any other BPS project: Q. Is there anything in the body of that agreement [the J.V. MOU] that limits the provisions of that agreement to either School 84 or 195 or 205 or 27? A. No. (R: 192). Huber’s Management Fee was applied as a cost at the end of each project (R: 151-52), so Huber also bore the additional risk that it would not be reimbursed even for its overhead and management expenses if a project failed to generate sufficient revenue. (R: 298). Other than the parties’ subsequent accord and satisfaction resolving Plaintiff’s continuing demands for a share of Huber’s Management Fee (discussed infra), the J.V. MOU was the last agreement executed by the parties. (R: 298-99). 3. The J.V. Operating Agreement After the J.V. MOU was signed, Huber proposed that it be re-titled as a J.V. Operating Agreement. Huber prepared that document whose terms are identical (except for its title) to the J.V. MOU. (R: 337-39). The parties never signed the J.V. Operating Agreement. (Plaintiff’s Brief, at p. 6; R: 299). - 9 - 4. Plaintiff produces a forged “agreement” After the parties had been working on BPS 84, 195 and 205 under the J.V. MOU for almost two years without complaint or objection, Plaintiff demanded a share of Huber’s 9% Management Fee. (R: 256-58). Huber, who was already paying for all of the J.V.’s overhead and management expenses, refused. (R: 256). The parties continued to operate under the J.V. MOU thereafter. It was not until two years after Plaintiff had filed its initial complaint and long after the parties had exchanged document discovery, that Plaintiff produced, for the first time, under cover letter dated October 17, 2012, a copy of the purported fee sharing “agreement” upon which it relies for its remaining breach of contract claims. (R: 340-55). Huber had never seen this “agreement” before. (R: 299). It was later determined to be a “cut and paste” forgery. (R: 17) (“Fraudulent Agreement”). In its October 17, 2012 cover letter, Plaintiff advised Huber that the Fraudulent Agreement and two other documents – the Boxhorn MOU and the J.V. MOU – collectively represent the parties’ agreement. (R: 340-41). Three weeks later, by letter dated November 5, 2012, Plaintiff changed its story, advising Huber that the Fraudulent Agreement alone was the controlling agreement. (R: 360-61; 162). One week after that, Plaintiff served its - 10 - Amended Complaint alleging that the parties “entered into” the Fraudulent Agreement and that it alone gave Plaintiff the right to a share of Huber’s Management Fee. (R: 62-70). When asked why he changed his story about which agreements controlled, Mr. Littleton testified “I don’t know how to answer that question.” (R: 162-63). Comparing the Fraudulent Agreement (R: 67-70) with the executed J.V. MOU (R: 325-28) and the unexecuted J.V. Operating Agreement (R: 337-39), it is readily apparent that the Fraudulent Agreement was created by attaching a photocopy of the executed signature page from the J.V. MOU (R: 327) (with the title changed and the paragraph providing for Huber’s 9% Management Fee removed) (R: 69), to the first two pages of the unexecuted J.V. Operating Agreement (R: 337-38). The following copies of the signature pages from the Fraudulent Agreement (R: 69) and the J.V. MOU (R: 327), allow for easy comparison and exposure of the forgery: - 11 - This comparison quickly reveals, as Plaintiff eventually conceded, that the “signatures” of Mr. Schober and Mr. Littleton on the Fraudulent Agreement are identical photocopies of their signatures on the J.V. MOU. (R: 172). Mr. Schober’s signature and the unique manner in which he wrote the number “28” in the date on the J.V. MOU are identical on both documents. (R: 180). The “Q” and the “L” of Mr. Littleton’s uniquely flourished signature pass through and circle the same words and letters in the J.V. MOU signature page produced by Plaintiff “Fraudulent Agreement” “signature” page produced by Plaintiff - 12 - same places above and below his signature on both documents. (R: 179). The signature and dates from the J.V. MOU are identical on the Fraudulent Agreement. (R: 180). The signature on the notary stamps (and the angle) are identical as well. (Compare R: 69 and R: 327). The title “Operating Agreement Littleton/Huber Joint Venture” on the Fraudulent Agreement was also obviously cut-and-pasted from the unexecuted J.V. Operating Agreement (R: 337-39), as the title hangs at a noticeable tilt compared to the text below it. (Id.). Even a portion of the same smudge appears in the upper left-hand margins of both documents. (Id.). While testifying that he could not recall if he had signed both documents (R: 173) and then testifying that he had (R: 174), Mr. Littleton admitted that the Fraudulent Agreement had been “altered” and that he knew that at the time: Q. You realize that these are the same documents except they’ve been altered, don’t you? A. Yes. Q. Did you know that at the time? A. Yes, I know that. (R: 170). Plaintiff ultimately conceded, and the Trial Court found, that the Fraudulent Agreement is, in fact, a “cut and paste job.” (R: 17). Plaintiff - 13 - claims that it has “no direct knowledge of who created [the Fraudulent Agreement]….” (R: 559). Plaintiff does not dispute that Huber never signed the Fraudulent Agreement and never even saw it until Plaintiff produced it years after filing its original complaint. (R: 299-300). Plaintiff concedes that Huber never signed any agreement agreeing to share its 9% Management Fee with Plaintiff. (R: 256-58). Plaintiff also concedes that it cannot identify any agreement or other document to support its claim that Huber agreed to share its 9% Management Fee with Plaintiff: Q. Okay. Show me a document where it says that the management fee was going to be split between you two Huber and Littleton? A. A document? Q. Yeah. A. That says that? Q. Yeah. A. There is no document that exists. *** Q. Right, he [Mr. Schober] didn’t agree to it? A. Right. (R: 257-58). - 14 - C. Huber’s right to its 9% Management Fee is further confirmed by Plaintiff’s preparation, approval, signing, and submission of bids for each of the BPS projects Dismissal of Plaintiff’s remaining claim is further supported by Plaintiff’s admission that it reviewed, approved, and signed various documents providing Huber with its 9% Management Fee. Mr. Littleton testified that he participated in the J.V.’s bidding process for each of the BPS 27, 195, 205, and 84 projects. (R: 136-37; 197-98). He participated in J.V. meetings where the various costs for each project were discussed and numbers were crunched to produce the tightest possible bid. (R: 197). Mr. Littleton testified that the J.V. created a “bid specification sheet” for each project which broke down the J.V.’s bid by specific costs and that each sheet contained a line item providing Huber with a 9% Management Fee. (R: 302; 367; 368; 373). Mr. Littleton also helped prepare each of the bids. (R: 136-37). He approved, signed and submitted those bids to L.P. Ciminelli, the construction manager for the BPS projects. (R: 144-50). Each bid included Huber’s 9% Management Fee. (R: 367; 368; 373; 302-03). Mr. Littleton also reviewed, approved and signed the contracts awarded to the J.V. for each of the BPS projects, which also included Huber’s 9% Management Fee. (R: 146- 50). Mr. Littleton knew the Management Fee was included in all of those - 15 - documents. (R: 743). Plaintiff has made these admissions as to each of the BPS projects at issue – BPS 84 (R: 138; 147-49; 302; 373-81); BPS 195 (R: 146- 47; 200-01; 368-72; 302-03); and BPS 205 (R: 149-50; 367; 382-92). None of these documents even suggest that the Management Fee was to be shared with Plaintiff. D. The parties resolved Plaintiff’s continuing complaints via a written accord and satisfaction When Huber refused Plaintiff’s demand for a share of the Management Fee, Plaintiff demanded monthly payments to reimburse it for the same overhead costs it previously demanded via a share of the Management Fee (all of which were already being paid by Huber). (R: 303-04; 393-94). After lengthy and, at times, bitter negotiations, Huber agreed that the J.V. would pay Plaintiff $1,790 per month for its purported overhead costs. (R: 393-94). This was memorialized in a letter agreement dated October 19, 2009, in which the parties agreed that the monthly payments would cover all of Plaintiff’s “present and future” claims for overhead expenses. (R: 393-94). The parties also agreed that no further requests for additional payments would be made. (R: 393). Despite accepting the benefits of this agreement for three years, Plaintiff waited until November 27, 2012, one year after all of the BPS projects had been completed, to serve its Amended Complaint demanding - 16 - once again a share of Huber’s Management Fee as compensation for its purported “overhead” costs. (R: 62-65). ARGUMENT APPLICABLE LEGAL STANDARD When opposing a motion for summary judgment, mere conclusions, expressions of hope, unsubstantiated allegations, speculation or conjecture will not suffice. Gilbert Frank Corp. v. Fed. Ins. Co., 70 N.Y.2d 966, 967 (1988); Sales v. Crimmen, 112 A.D.2d 49 (4th Dep’t 1985). Nor is a “shadowy semblance of an issue or bold conclusory assertions, even if believable,” sufficient; issues of fact must be genuine and involve material facts in order to defeat a motion for summary judgment. Paltrow v. Town of Lewisboro, 199 A.D.2d 372, 373 (2d Dep’t 1993). THE APPELLATE DIVISION CORRECTLY HELD THAT THE J.V. MOU UNAMBIGUOUSLY ENTITLES HUBER TO A 9% MANAGEMENT FEE FOR EACH OF THE BPS 195, 205, AND 84 PROJECTS “Where…the intention of the parties is plainly expressed in clear, unambiguous terms, the question is one of law, appropriately decided by the court on a motion for summary judgment.” Foley Prods., Inc. v. Singer Corp., 133 A.D.2d 531, 531 (4th Dep’t 1987). - 17 - Plaintiff argues that the J.V. MOU is ambiguous concerning Huber’s 9% Management Fee. The Appellate Division, however, correctly held that Plaintiff failed to raise a triable issue of fact whether the J.V. MOU provides Huber with its 9% Management Fee. (Order, at p. 2 [R: 5a]). The J.V. MOU, on its face, provides Huber with that fee for “each” and “all” BPS projects: Huber Construction shall provide all home office management services and shall receive a flat percentage for this service. The percentage will be nine percent (9%) of the contract value as agreed on by Huber Construction, Inc. and Littleton Construction Ltd. (R: 325-27). Even Mr. Littleton testified that the J.V. MOU provides Huber with the 9% Management Fee (R: 151-52) and that it is not limited to any one of the BPS projects (R: 192). PLAINTIFF ADMITS THAT HUBER NEVER AGREED TO SHARE ITS MANAGEMENT FEE AND THAT NO AGREEMENT OR OTHER DOCUMENT EXISTS TO SUPPORT PLAINTIFF’S CLAIM TO A SHARE OF THAT FEE Plaintiff’s remaining claim alleges that Huber and Plaintiff entered into an agreement (the Fraudulent Agreement) allowing Plaintiff to share Huber’s Management Fee. (R: 63). This claim, as the Appellate Division correctly held, is without merit as a matter of law. - 18 - Mr. Littleton has admitted that he proposed an agreement to share Huber’s 9% Management Fee, but that Huber “never agreed to it.” (R: 256- 57). Plaintiff also concedes that Huber never signed any agreement or other document agreeing to share its Management Fee with Plaintiff. (R: 256). In fact, Mr. Littleton testified that “no document” exists which provides for Huber’s Management Fee to be shared with Plaintiff. (R: 256). These sworn admissions are binding. Chautauqua Cnty. Fed’n of Sportsmens Club, Inc. v. Caflisch, 15 A.D.2d 260, 264 (4th Dep’t 1962). Accordingly, Plaintiff’s claim that any agreement, much less the Fraudulent Agreement, gives it the right to share Huber’s 9% Management Fee, is without merit. THE APPELLATE DIVISION CORRECTLY HELD THAT THE FRAUDULENT AGREEMENT IS VOID AND UNENFORCEABLE AGAINST HUBER To avoid the plain language of the J.V. MOU and its provision for Huber’s 9% Management Fee, Plaintiff obviously created the Fraudulent Agreement with the paragraph providing that fee to Huber photocopied out. (Compare R: 327 and R: 69). Plaintiff’s denial that it created the Fraudulent Agreement is not credible and, in any event, legally irrelevant. - 19 - It is well-settled that without a meeting of the minds, there can be no contract. Gui’s Lumber & Home Ctr., Inc. v. Mader Constr. Co., 13 A.D.3d 1096, 1097 (4th Dep’t 2004). Accordingly, no valid contract can exist when a party’s signature to the contract has been forged. Orlosky v. Empire Sec. Sys., Inc., 230 A.D.2d 401, 403 (3d Dep’t 1997). A forged signature renders the contract void ab initio. Faison v. Lewis, ___ N.Y.3d ___, 2015 WL 2183712 (2015). A cut-and-paste forgery, regardless who created it, is unenforceable under New York law. Kwang Hee Lee v. ADJMI 936 Realty Assocs., 46 A.D.3d 629, 631 (2d Dep’t 2007) (Because Lee’s signature was forged, “the Supreme Court properly found that the contract containing the prepaid rent provision was void ab initio.”); Tikvah Realty, LLC v. Schwartz, 43 A.D.3d 909, 909 (2d Dep’t 2007) (holding that defendant’s motion for summary judgment dismissing plaintiff’s complaint was properly granted where defendant demonstrated that he never signed the contract). Opals on Ice Lingerie v. Body Lines Inc., 320 F.3d 362, 370 (2d Cir. 2003) (applying New York law) is on point. There, the Second Circuit held that a “cut and paste” of a party’s signature constitutes a forgery and renders the contract void and unenforceable. Like here, both parties in Opals agreed that the “signatures” on the contract had been cut-and-pasted. The plaintiff in Opals, seeking to enforce the contract, argued that an issue of fact existed - 20 - regarding the validity of the contract because the parties could not conclusively prove who placed the forged “signatures” on the document. The plaintiff’s unsupported argument that it was “possible” that an agent of defendant Body Lines had cut-and-pasted the signature of its own representative was rejected as conclusory and speculative. Id. at 370, n.3. The Court held that Body Lines was not required to prove who actually altered the agreement – it was only required to make a prima facie showing that its own signature had been forged, which it did. The plaintiff failed to offer proof to the contrary. Accordingly, Opals held that the forged document was unenforceable and affirmed summary judgment dismissing the complaint. Id. at 370. Although abundantly clear that Plaintiff created the Fraudulent Agreement (and was the only party with a motive to do so), the Appellate Division correctly recognized that Huber was not required to prove that Plaintiff did, as the Trial Court erroneously seemed to suggest. Huber was only required to offer proof that it did not sign the Fraudulent Agreement. Orlosky, 230 A.D.2d at 403; Kwang Hee Lee, 46 A.D.3d at 631; Tikvah Realty, LLC, 43 A.D.3d at 409; Opals, 320 F.3d at 370. Huber offered that proof, in abundance, as discussed above, by submitting Plaintiff’s dispositive admissions (e.g. R: 256-58) and Mr. Schober’s undisputed affidavits (e.g. R: 299-300). - 21 - In response, Plaintiff not only failed to refute Huber’s proof, but admitted, dispositively, that Huber “never agreed” to share its Management Fee with Plaintiff (R: 257); that Huber never signed any agreement or other document agreeing to do so (R: 256-58); that “no document” exists which provides Plaintiff with a share of Huber’s Management Fee (R: 256); and that Plaintiff does not know who created the Fraudulent Agreement (R: 559). These admissions remove any conceivable issue concerning the fact that Huber never agreed, in the Fraudulent Agreement or elsewhere, to share its Management Fee with Plaintiff. 2 The Appellate Division dissent mistakenly relied upon Mr. Littleton’s original assertion that he signed the Fraudulent Agreement (R: 176-77) (Order, at p. 2 [R: 5a]) (after he said he could not remember [R: 173]) in reaching its opinion that “we cannot conclude as a matter of law that the [Fraudulent Agreement] is a forgery.” (Order, at p. 2 [R: 5a]). 2 Any speculation that Huber might have created the Fraudulent Agreement does not warrant serious consideration. (Plaintiff’s Brief, at p. 2). Huber attested that it never signed the Fraudulent Agreement (R: 299-300) and Plaintiff never disputed that fact. Mr. Littleton attested that he does not know who created the Fraudulent Agreement. (R: 559). Moreover, it makes no sense to suggest that Huber would go to such elaborate lengths to give up or share its own 9% Management Fee (it could have done so with a slash and its initials or a one sentence letter), particularly given Huber’s undisputed affidavits (R: 299- 300) and Plaintiff’s admissions (R: 256-58) that Huber categorically refused Plaintiff’s request for a share of that fee. Plaintiff’s suggestion that the Fraudulent Agreement nonetheless “accurately reflect[s]” the parties’ agreement is nonsense. (Plaintiff’s Brief, at p. 2). An undisputed cut-and-paste forgery that Huber never signed does not reflect any agreement, much less an “agreement” to which Plaintiff admits Huber never agreed. - 22 - Because a meeting of the minds is required for there to be a valid contract (see Gui’s Lumber & Home Ctr., Inc., 13 A.D.3d at 1097 supra), it is irrelevant whether Mr. Littleton originally said (untruthfully as it turns out) that he signed the Fraudulent Agreement (while later conceding that it was an “altered” “cut and paste job”), or even whether he actually did sign it. In order to be enforceable against Huber, the “agreement” had to be signed by Huber and it is undisputed, in fact admitted by Plaintiff, that Huber never did so. (R: 299-300; 256). There being no issue of fact on this point, Plaintiff’s claim was properly dismissed. THE APPELLATE DIVISION CORRECTLY HELD PLAINTIFF’S PURPORTED NEED FOR EXTRINSIC EVIDENCE TO BE WITHOUT MERIT A. The J.V. MOU is clear Plaintiff’s remaining claim is based solely upon the unenforceable Fraudulent Agreement (R: 63; 67-70; Plaintiff’s Brief, at p. 10). To defeat Defendants’ motion, therefore, Plaintiff was required to offer proof that the Fraudulent Agreement is an enforceable contract. See Niagara Foods, Inc. v. Ferguson Elec. Serv. Co., 111 A.D.3d 1374, 1376 (4th Dep’t 2013) (holding that a party asserting a breach of contract claim must prove that the alleged - 23 - agreement is valid). As demonstrated above, Plaintiff did not and could not do so. Apparently recognizing this fatal shortcoming, Plaintiff argues that the legal effect of the Fraudulent Agreement can only be determined by “extrinsic evidence.” (Plaintiff’s Brief, at pp. 10-11). This is not correct. The only valid agreements between the parties are the J.V. MOU and the earlier Boxhorn MOU. The J.V. MOU, as Plaintiff concedes, unambiguously provides a 9% Management Fee to Huber. (R: 151). Whether the Fraudulent Agreement contains an ambiguity is, of course, irrelevant as extrinsic evidence cannot make an unenforceable agreement enforceable. Plaintiff argues that the J.V. MOU is ambiguous because it does not explicitly reference the BPS 195, 205, and 84 projects. The plain language of the J.V. MOU, however, states repeatedly that it applies to “each” and “all” projects successfully obtained by the J.V. (R: 325-27). Even Mr. Littleton testified that the J.V. MOU is not limited to any particular BPS project. (R: 192-93).3 To the extent Plaintiff attempts to deny these admissions, New York law does not allow a party to avoid summary judgment by contradicting 3 Plaintiff bases its claim to a share of Huber’s Management Fee for each of the BPS projects on the Fraudulent Agreement, whose language is identical to the J.V. MOU (except for the removal of Huber’s Management Fee). Its suggestion, therefore, that one is ambiguous as to its application to each of the BPS projects while the other is not, is obviously not credible. - 24 - its own deposition testimony. See Rechlin v. Allweather Contrs., 298 A.D.2d 907, 908 (4th Dep’t 2002); Hyna v. Reese, 52 A.D.3d 1254, 1255-56 (4th Dep’t 2008); Decker v. Schildt, 100 A.D.3d 1339, 1341 (1st Dep’t 2012). Further, in an email dated April 30, 2010 (with a re: line “BPS 205”), Plaintiff admitted once again that Huber is entitled to the 9% Management Fee. (R: 392; 303). Plaintiff next argues that the rider for BPS 27 attached to the J.V. MOU somehow creates an ambiguity. (Plaintiff’s Brief, at p. 9). That argument too is without merit. The Rider does not contradict the language of the J.V. MOU, which provides Huber a flat 9% Management Fee for “each” and “all” projects undertaken by the J.V. (R: 327; 151; 192-93). The J.V. MOU, therefore, confirms the language of the Rider by applying to BPS 84, 195 and 205 the same 9% Management Fee agreed to for BPS 27, a project commenced before the J.V. MOU was executed. (R: 297). Riders providing a 9% Management Fee to Huber for the subsequent BPS 84, 195 and 205 projects were unnecessary because the J.V. MOU itself provides Huber with that fee. (R: 327; 151; 192). - 25 - B. Extrinsic evidence is not required to authenticate copies of original documents Plaintiff’s next argument, that extrinsic evidence is required because neither party produced original documents, is factually and legally incorrect. (See Plaintiff’s Brief, at pp. 7-8). Where the existence or contents of a document are in dispute, the “best evidence rule” requires production of the original document to protect against perjury, fraud or mistakes in copying. Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 643-44 (1994). However, where the parties agree that a copy of a document accurately reflects the original, it will be accepted as evidence. Chamberlain v. Amato, 259 A.D.2d 1048, 1048 (4th Dep’t 1999) (admitting copy of promissory note where “[t]he existence of the original writing and the authenticity and accuracy of the copy were not disputed . . .”); see also Comerica Bank, N.A. v. Benedict, 39 A.D.3d 456, 457 (2d Dep’t 2007) (best evidence rule does not apply where plaintiff acknowledged her signature on the copy submitted as evidence); La Rue v. Crandall, 254 A.D.2d 633, 635 (3d Dep’t 1998) (admitting copy of letter by petitioner to respondent where petitioner admitted that he wrote original). Here, Plaintiff authenticated the copies of the J.V. MOU and the Boxhorn MOU presented at Mr. Littleton’s deposition and he testified that he signed both. (R: 135-36 [J.V. MOU]; 128-29 [Boxhorn MOU]). In fact, - 26 - Plaintiff produced them both on October 17, 2012, referring to them as the parties’ controlling agreements. (R: 340-59). There is obviously no “original” of the Fraudulent Agreement because it is a photocopied “cut and pasted” forgery. (Plaintiff’s Brief, at pp. 2, 6, 11; R: 17; Compendium on Behalf of Respondents Huber Construction, Inc. and Littleton/Huber Joint Venture (“Compendium”): 38, 40, 42). Also, in its discovery demands, Plaintiff requested a copy or an original of the documents produced. (Compendium: 69). Plaintiff’s new assertion, never raised below, that the J.V. MOU “also evidences being cut and pasted by insertion of the paragraph in question” does not warrant serious consideration. (Plaintiff’s Brief, at p. 8). This Court may only consider arguments raised below and preserved for appeal. Bingham v. New York City Transit Authority, 99 N.Y.2d 355, 357 (2003); Haynes v. Haynes, 83 N.Y.2d 954, 957 (1994); Cooper v. City of New York, 81 N.Y.2d 584, 588 (1993). This argument was never raised previously. Regardless, Plaintiff has conceded that the J.V. MOU, with its 9% Management Fee “paragraph in question,” was signed by both parties and does, in fact, provide Huber with its 9% Management Fee. (R: 151-52). Finally, Plaintiff fails to identify any “extrinsic evidence” that would support its argument. (Plaintiff’s Brief, at pp. 8-10). The admittedly - 27 - Fraudulent Agreement, indisputably unsigned by Huber, cannot open the door to such evidence, especially given Plaintiff’s admissions that Huber never agreed to share its Management Fee with Plaintiff and that “no document” exists stating otherwise. (R: 256-58). Plaintiff’s citation to an undifferentiated string of cases concerning the general topic of extrinsic evidence, with no application to this case, similarly provides no support to Plaintiff. As the Fraudulent Agreement upon which Plaintiff relies is an admitted forgery that Huber never signed, the Appellate Division correctly determined that extrinsic evidence was neither permitted nor necessary. C. Plaintiff’s claim would fail even if extrinsic evidence were considered 1. Plaintiff admits that it knew Huber’s 9% Management Fee was included in the bid specification sheets, bids and contracts Plaintiff reviewed, approved and signed on behalf of the J.V. A party who signs, accepts or acts upon a writing is conclusively presumed to have knowledge of, and to have assented to, its contents. Angerosa v. White Co., 248 A.D. 425 (4th Dep’t 1936), aff’d, 275 N.Y. 524 (1937). A company is not excused from the presumption of knowledge and assent by reason of its officer’s failure to read a document. Mohertus Trading Co. v. United Parcel Serv. Co., 160 Misc. 2d 259, 260 (1st Dep’t 1994). Accordingly, even if extrinsic evidence were considered, Plaintiff’s claim would fail because that evidence would include Plaintiff’s admissions that - 28 - Mr. Littleton reviewed, discussed, approved, signed and acted upon bid specification sheets for each BPS project that referenced Huber’s 9% Management Fee. (R: 743). Plaintiff admits, and the Appellate Division correctly held, that it knew the 9% Management Fee was included in the bid specification sheets. (Id.). Those sheets identify items that the parties agreed to share (profit split “Litt. 55%”/“Huber 45%”), and those for which there is no split (“9% Overhead”). (See R: 367; 368; 373). There is nothing there to suggest that Plaintiff was to receive a share of Huber’s 9% Management Fee. Plaintiff also admits that Mr. Littleton reviewed, discussed, approved, signed and acted upon the bid submissions and the contracts awarded for the BPS 195, 205, and 84 projects, each of which included Huber’s 9% Management Fee. (R: 136-37; 144-50; 302-03). Again, there is nothing in those documents to suggest that Plaintiff was to receive a share of that fee. All extrinsic evidence, therefore, confirms that Plaintiff knew and, in any event, is presumed as a matter of New York law to have known, that Huber was entitled to a 9% Management Fee for each BPS project. 2. Plaintiff operated in accordance with the J.V. MOU, accepted its benefits and should be estopped from denying its terms A party “cannot accept benefits under a contract fairly made and at the same time question its validity.” Svenska Taendsticks Fabrik Aktiebolaget v. Bankers Trust Co., 268 N.Y. 73, 81 (1935); see also Mencher v. Weiss, 306 N.Y. 1, - 29 - 9 (1953) (“Defendant agreed to those terms, and accepted the benefits of the agreement given in reliance upon his promise. He may not now argue that the agreement is unsupported by consideration.”); R.A.C. Holding v. City of Syracuse, 258 A.D.2d 877, 878 (4th Dep’t 1999) (citing Svenska, 268 N.Y. at 81). In other words, a party is not permitted to retain the beneficial part of an agreement, yet repudiate its obligations. Dodds v. McColgan, 222 A.D. 126 (1st Dep’t 1927). Here, Plaintiff accepted the benefits of the J.V. MOU for each of the BPS projects – benefits significantly tilted in Plaintiff’s favor – including Plaintiff’s 55% share of the profits, Mr. Littleton’s $32.00 per hour compensation, reimbursement for Plaintiff’s expenses and Huber’s agreement to provide all financial backing for each project and to bear all risk of loss. (R: 296-97; 325-27). Having accepted those benefits on each of the BPS 195, 205, and 84 projects pursuant to the terms of the J.V. MOU, Plaintiff cannot credibly deny the validity of the 9% Management Fee provided to Huber in that same J.V. MOU. Svenska, 268 N.Y. at 81; Mencher, 306 N.Y. at 9; R.A.C. Holding, 258 A.D.2d at 878; Dodds, 222 A.D. 126. Plaintiff next argues that it cannot establish which “Agreement(s)” reflect the parties’ intentions. (Plaintiff’s Brief, at p. 8). Two pages later, Plaintiff alleges that the Fraudulent Agreement is the controlling agreement. - 30 - (Plaintiff’s Brief, at p. 10). Three years before, in its October 17, 2012 letter, Plaintiff claimed that three agreements were controlling. (R: 340-59). One month after that, Plaintiff claimed in its November 5, 2012 letter (R: 360-66) and in its Amended Complaint (R: 62-70) that the Fraudulent Agreement is the only controlling agreement. Plaintiff’s shell game of hide the “agreement” belies its purported lack of knowledge about those agreements as well as its claim that Huber agreed to share its Management Fee by entering into the Fraudulent Agreement. It is Plaintiff’s burden to prove the existence of an enforceable agreement providing it with a share of Huber’s Management Fee. If, as it now concedes (Plaintiff’s Brief, at p. 8), it does not know which “Agreement(s) reflect the parties’ intentions,” then it admits it cannot carry that burden. Finally, Plaintiff also contends that it cannot determine “which document(s), if any, were created from the other document(s).” (Plaintiff’s Brief, at p. 8). This is nonsense. Plaintiff has never contended that the J.V. MOU or the Boxhorn MOU were created from other documents. In fact, Mr. Littleton produced both (R: 340-59), authenticated them under oath (R: 135-36; 128-29), and testified that the J.V. MOU was signed by both parties and provides Huber with a 9% Management Fee. (R: 135-36; 151). Again, if Plaintiff cannot identify an agreement providing it with a share of Huber’s - 31 - Management Fee – (it has conceded that none exist [R: 256]) – then its claim was properly dismissed for this reason as well. THE PARTIES’ OCTOBER 19, 2009 ACCORD AND SATISFACTION RESOLVED ANY DISPUTE OVER HUBER’S MANAGEMENT FEE “An accord and satisfaction, as its name implies, has two components. An accord is an agreement that a stipulated performance will be accepted, in the future, in lieu of an existing claim. Execution of the agreement is a satisfaction.” Denburg v. Parker Chapin, 82 N.Y.2d 375, 383 (1993) (citations omitted). An accord and satisfaction is enforceable when a party has been informed that acceptance of the amount offered will settle or discharge the disputed claim. Denburg, 82 N.Y.2d at 383; Conboy, McKay, Bachman & Kendall v. Armstrong, 110 A.D.2d 1042, 1043 (4th Dep’t 1985); R: 742; Plaintiff’s Brief, at pp. 11-12.4 After Plaintiff’s request for a share of Huber’s Management Fee to compensate for its purported overhead expenses (all of which Huber had already paid) was refused, Plaintiff demanded monthly payments to reimburse 4 Although preserved for review, the Appellate Division did not consider this argument in light of its determination that Plaintiff failed to show that the Fraudulent Agreement is enforceable. This issue provides an independent basis to affirm. See Town of Massena v. Niagara Mohawk Corp., 45 N.Y.2d 482, 488 (1978) (an appellate court may affirm on any alternative grounds raised in the record). - 32 - it for those same overhead expenses. After lengthy discussions, the parties executed an October 19, 2009 agreement in which Huber agreed to pay (and did pay) Plaintiff $1,790.00 per month to resolve the dispute once and for all. (R: 393-94). The plain language of this agreement resolved and discharged all “present and future” claims Plaintiff might have for overhead expenses, that “additional areas of concern may arise but will be considered part of the [$1,790] average,” and that no further payment for overhead expenses would be requested. (R: 393-94 (emphasis added)). Plaintiff argues that the October 19, 2009 agreement does not resolve its present claim because it brought this lawsuit to recover “management,” not “overhead,” expenses. (Plaintiff’s Brief, at p. 11). Even assuming there is a difference between “overhead” and “management” expenses (there isn’t), Plaintiff’s argument fails because its Amended Complaint seeks a share of Huber’s Management Fee to reimburse it for overhead expenses only: (i) “The Operating Agreement [Fraudulent Agreement], among other things, contemplates changes in the overhead fee charged by Huber on projects subsequent to BPS 27.” (R: 63 [Amended Complaint, ¶9] (emphasis added)); (ii) “According to the terms of the Operating Agreement [Fraudulent Agreement], the Plaintiff is entitled to a portion of the 9% overhead fee on BPS 195, 205 and 84.” (Id. [¶15] (emphasis added)); - 33 - (iii) “Despite the Plaintiff’s request for payment of a portion of the overhead fee….” (Id. [¶16] (emphasis added)); and (iv) In Plaintiff’s ad damnum clause, it requested “Plaintiff’s portion of the 9% overhead fee on BPS 195, 205 and 84.” (R: 64 (emphasis added)). There is not a single reference to “management” expenses in Plaintiff’s original or amended complaints. In addition, the J.V. MOU defines the 9% Management Fee as reimbursement to Huber for “office supplies, rent, utilities, salaries, or any other costs that would be defined as overhead expenses….” (R: 327 (emphasis added)). Even the BPS 27 Rider describes Huber’s Management Fee as the “home office overhead fee charged by [Huber]….” (R: 328 (emphasis added)). The bid specification sheets approved by Plaintiff for each BPS project similarly define the 9% Management Fee as “Overhead” (R: 367-68; 373 (emphasis added)) and each contains a line item for Huber’s 9% overhead fee (id.). Plaintiff next contends that the Management Fee issue was not resolved because the October 19, 2009 agreement does not explicitly use the phrase “9% Management Fee.” (Plaintiff’s Brief, at p. 11). That argument too is without merit. The parties broadly resolved all of Plaintiff’s “present and future” claims for overhead expenses, however alleged or described (including - 34 - any related to Huber’s Management Fee), by Huber’s payment to Plaintiff of an additional $1,790 per month. (R: 393). Given that Plaintiff’s remaining claim seeks payment only for overhead expenses, that claim was expressly resolved by the October 19, 2009 agreement. A. Plaintiff has been paid for all of the expenses it seeks in this litigation Huber submitted proof that Plaintiff has already been paid for all of the items it seeks in this litigation, regardless of the labels Plaintiff attaches to them (i.e., “management” or “overhead”). Specifically, Plaintiff claims its office manager devoted all of her time to BPS related management functions. (R: 553). The October 19, 2009 agreement, however, expressly compensated Plaintiff for her monthly salary and all office expenses. (R: 393-418). Plaintiff also seeks payment for its office manager performing certain payroll functions and physically delivering paychecks to workers. (R: 553). Again, the October 19, 2009 agreement expressly compensated Plaintiff for its office manager’s monthly salary and for Plaintiff’s Paychex payroll servicing program, its office supplies and its copier/fax and gas expenses. (R: 393-418). Plaintiff also claims that it is entitled to compensation for preparing various documents and reports, contacting individuals and filing documents for the J.V. (R: 554-55). The October 19, 2009 agreement, however, expressly provided payment for all of Plaintiff’s office salaries, office supplies and its copier/fax and gas expenses. (R: 393-418). Plaintiff offered no evidence in opposition to this proof. Nor has Plaintiff identified any alleged "management service" that does not fall under one or more of the categories of expenses for which Plaintiff has already been paid pursuant to the October 19, 2009 agreement and/or the J.V. MOU. The Record, therefore, is undisputed that Huber has already paid Plaintiff for all the expenses it seeks in this litigation and, for that reason too, its remaining claim was properly dismissed. CONCLUSION For the foregoing reasons, the Appellate Division's Order should be affirmed. Dated: Buffalo, New York September 30, 2015 Doc #01-2893413.1 PHILLIPS LYTLE LLP By: {J�ei.L---- Michael B: Powers William J. Simon Attorneys for Defendants-Respondents Huber Construction Inc. and Littleton I Huber Joint Venture One Canalside 125 Main Street Buffalo, New York 14203 Telephone No. (716) 847-8400 mpowers@phillipslytle.com wsimon@phillipslytle.com - 35 -