Alf Naman Real Estate Advisors, LLC v. Cape Sag Developers, LLC

113 A.D.3d 525, 978 N.Y.2d 844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 2014
• Status: Published

Opinion

The November 2, 2007 Amended and Restated Limited Company Agreement of Capnam Sag Management, LLC (Capnam Sag) prohibited defendant Cape Sag Developers, as managing member of Capnam Sag, from involving Capnam Sag in a merger except in a “Controlled Transaction” where the surviving entity is an “Affiliate” of Capnam Sag. As relevant to this appeal, an “Affiliate” of Capnam Sag is an entity which is “under common ownership or control” with Capnam Sag, On July 15, 2011, Cape Sag Developers entered into a limited liability company agreement as the sole owner and managing member of defendant Capsag Harbor, Management, LLC (Capsag Harbor), and effective July 18, 2011, Cape Sag Developers merged Capnam Sag into Capsag Harbor, with Capsag Harbor as the surviving entity.

The court properly found that the merger was permissible because Capsag Harbor was the “Affiliate” of Capnam Sag in that both companies were under the “common ownership or control” of Cap Sag Developers, which was the managing member in control of both companies. In making this finding, the court properly enforced the amended limited liability agreement according to the plain meaning of its terms, without looking to extrinsic evidence to create ambiguities not present on the face of the document (see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272 [2005]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Concur — Mazzarelli, J.P., Friedman, Renwick, Moskowitz and Richter, JJ.