Meltzel v. G.B.G., Inc.

Appellate Division of the Supreme Court of New York

Meltzel v. G.B.G., Inc.

205 A.D.2d 329, 613 N.Y.S.2d 22, 1994 N.Y. App. Div. LEXIS 6032

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 7, 1994

StatusPublished

This text of 205 A.D.2d 329 (Meltzel v. G.B.G., Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Meltzel v. G.B.G., Inc., 205 A.D.2d 329, 613 N.Y.S.2d 22, 1994 N.Y. App. Div. LEXIS 6032 (N.Y. Ct. App. 1994).

Pincite

Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered March 23, 1993, which granted defendants’ motion for summary judgment dismissing the complaint, denied plaintiffs’ cross motion to amend the complaint, severed defendants’ counterclaims and cross claims and vacated all prior orders restraining payment of escrow funds and directed release of such funds to defendants, unanimously affirmed, without costs.

The contract is not ambiguous with respect to defendant sellers’ obligation to obtain a rezoning that would permit 52,000 square feet of floor area "including common areas”. The ordinary meaning of the term "common areas” is not limited to space directly ancillary to the dwelling units, such as stairwells, but includes space used in common by the tenants, such as the basement. If plaintiff purchasers, who included a real estate attorney and an architect, had intended to limit common areas to the space so designated in preliminary plans, they should have incorporated such plans by reference into the contract. And even if the Zoning Resolution definition were used, as plaintiffs urge, a basement area that includes a tenants’ meeting room would be included in floor area as a basement, not a cellar.

While the first cause of action of the proposed amended complaint would cure the pleading defect that, on the prior appeal, resulted in dismissal of plaintiffs’ original fourth cause of action for anticipatory breach based upon defendants’ intention to rezone the premises to a commercial (C-3) rather than [330]*330low-density residential (R3-2) area (176 AD2d 687), the IAS Court properly denied plaintiffs’ motion for leave to amend on the ground that the proofs showed that the claim is without merit. Nothing in the contract obligated defendants to seek an R3-2 or any other particular zoning designation. We have considered plaintiffs’ remaining points and find them to be without merit. Concur—Sullivan, J. P., Wallach, Kupferman, Asch and Tom, JJ.

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Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered March 23, 1993, which granted defendants’ motion for summary judgment dismissing the complaint, denied plaintiffs’ cross motion to amend the complaint, severed defendants’ counterclaims and cross claims and vacated all prior orders restraining payment of escrow funds and directed release of such funds to defendants, unanimously affirmed, without costs.

The contract is not ambiguous with respect to defendant sellers’ obligation to obtain a rezoning that would permit 52,000 square feet of floor area "including common areas”. The ordinary meaning of the term "common areas” is not limited to space directly ancillary to the dwelling units, such as stairwells, but includes space used in common by the tenants, such as the basement. If plaintiff purchasers, who included a real estate attorney and an architect, had intended to limit common areas to the space so designated in preliminary plans, they should have incorporated such plans by reference into the contract. And even if the Zoning Resolution definition were used, as plaintiffs urge, a basement area that includes a tenants’ meeting room would be included in floor area as a basement, not a cellar.

While the first cause of action of the proposed amended complaint would cure the pleading defect that, on the prior appeal, resulted in dismissal of plaintiffs’ original fourth cause of action for anticipatory breach based upon defendants’ intention to rezone the premises to a commercial (C-3) rather than [330]*330low-density residential (R3-2) area (176 AD2d 687), the IAS Court properly denied plaintiffs’ motion for leave to amend on the ground that the proofs showed that the claim is without merit. Nothing in the contract obligated defendants to seek an R3-2 or any other particular zoning designation. We have considered plaintiffs’ remaining points and find them to be without merit. Concur—Sullivan, J. P., Wallach, Kupferman, Asch and Tom, JJ.

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Bluebook (online)

205 A.D.2d 329, 613 N.Y.S.2d 22, 1994 N.Y. App. Div. LEXIS 6032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meltzel-v-gbg-inc-nyappdiv-1994.

Opinion

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