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Friedman v. Ocean Dreams, LLC

Appellate Division of the Supreme Court of New York, Second Department
Nov 25, 2008
868 N.Y.S.2d 131 (N.Y. App. Div. 2008)

Summary

affirming trial court's dismissal of claims based upon clear and unambiguous language of the contract, including a "no modification clause"

Summary of this case from Webster Business Credit Corp v. Bradley Lumber Comp

Opinion

No. 2007-06534.

November 25, 2008.

In an action to impose a constructive trust, for an accounting, and to recover damages for the breach of a fiduciary duty, breach of contract, and conversion, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated June 11, 2007, as granted those branches of the defendants' motion which were for summary judgment dismissing the first, second, and third causes of action in the complaint.

Rosenberg Calica Birney LLP, Garden City, N.Y. (Robert M. Calica, Edward M. Ross, and Judah Serfaty of counsel), for appellant.

Stahl Zelmanovitz, New York, N.Y. (Joseph Zelmanovitz of counsel), for respondents.

Before: Prudenti, P.J., Santucci, McCarthy and Chambers, JJ.


Ordered that the order is affirmed insofar as appealed from, with costs.

The present controversy involves a limited liability company known as Ocean Dreams, LLC, which owns real property in Brooklyn. In essence, the plaintiff Saul Friedman claims that he owns 50% of Ocean Dreams, LLC, based upon an oral agreement with the defendant David Weisz and prior partnership agreements precluding Weisz from purchasing real property without his partners, including the plaintiff.

The Supreme Court properly granted those branches of Weisz's motion which were for summary judgment dismissing the first, second, and third causes of action in the complaint. Weisz established that he was entitled to judgment as a matter of law by tendering documentary evidence that contradicted Friedman's claims. This evidence showed that Friedman executed a partnership redemption agreement on October 3, 2002, which contained a merger clause precluding him from relying on any prior partnership agreements, and a no-modification clause precluding him from entering into any oral agreements regarding Ocean Dreams, LLC. At the same time, Friedman executed a general release, which, inter alia, discharged Weisz from any claims arising from their prior business dealings. Under the traditional rules of contract law, the courts will enforce a clear and unambiguous merger clause ( see AFA Protective Sys. v Lincoln Sav. Bank, 194 AD2d 509) and a valid release ( see Matter of Brooklyn Resources Recovery, 309 AD2d 931; Chaudhry v Garvale, 262 AD2d 518; Touloumis v Chalem, 156 AD2d 230, 232; Appel v Ford Motor Co., Ill AD2d 731, 732 [1985]).

Friedman's conclusory allegations presented feigned factual issues designed to avoid the consequences of the defendants' documentary evidence ( see Buziashvili v Ryan, 264 AD2d 797; Matter of Fisch v Aiken, 252 AD2d 556).

Friedman's remaining contentions are without merit or need not be reached in light of our determination.

[ See 15 Misc 3d 1146(A), 2007 NY Slip Op 51188(U).]


Summaries of

Friedman v. Ocean Dreams, LLC

Appellate Division of the Supreme Court of New York, Second Department
Nov 25, 2008
868 N.Y.S.2d 131 (N.Y. App. Div. 2008)

affirming trial court's dismissal of claims based upon clear and unambiguous language of the contract, including a "no modification clause"

Summary of this case from Webster Business Credit Corp v. Bradley Lumber Comp

recognizing that language stated new contract "supersed[ed] all prior agreements" and thus plaintiff could not bring claim arising out of past agreement

Summary of this case from Barbourville Diagnostic Imaging Ctr. v. Philips Med. Sys., Inc.
Case details for

Friedman v. Ocean Dreams, LLC

Case Details

Full title:SAUL FRIEDMAN, Appellant, v. OCEAN DREAMS, LLC, et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 25, 2008

Citations

868 N.Y.S.2d 131 (N.Y. App. Div. 2008)
868 N.Y.S.2d 131
868 N.Y.S.2d 257
2008 N.Y. Slip Op. 9351

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