| N.Y. App. Div. | Jul 22, 2010
Cross appeals from a judgment of the Supreme Court (Egan Jr., J.), entered March 27, 2009 in Albany County, upon a decision of the court partially in favor of defendants.
In 1995, plaintiff Howard Carr sought financial assistance from defendant Jay Birnbaum in connection with a real estate development project that Carr had commenced the year before. Birnbaum
In October 2002, Carr contracted, through an entity owned
We affirm. In our view, the plain and unambiguous terms of the development agreement entitled plaintiffs to payment of the sum of $102,000 either upon the “leasing of the full” office space or “[i]f Carr notifie[d] Birnbaum that he intends not to exercise his option to purchase the 50% available to him.” We find both contingencies to be conditions precedent to plaintiffs’ receipt of the $102,000. In that regard, we disagree with plaintiffs’ assertion that defendants’ pleadings failed to comply with the particularity requirements of CPLR 3015 (a). Inasmuch as the complaint alleged that plaintiffs fulfilled all of the obligations contained in the development agreement, defendants’ general denials were sufficient to place the performance or occurrence of the conditions precedent in issue (see Allis-Chalmers Mfg. Co. v Malan Constr. Corp., 30 NY2d 225, 233-234 [1972]; United States Fid. & Guar. Co. v Delmar Dev. Partners, LLC, 22 AD3d 1017, 1022 [2005]), and the burden of proof was on plaintiffs to establish same (see CPLR 3015 [a]).
Turning to the merits, “[i]t is well settled that no action for breach of contract lies where the party seeking to enforce the contract has failed to perform a specified condition precedent” (Navilia v Windsor Wolf Rd. Props. Co., 249 AD2d 658, 659 [1998]). Here, the record reveals that the building was not fully
The record similarly fails to support plaintiffs’ assertion that Carr provided Birnbaum with notification indicating that he did not intend to exercise his option to purchase 50% of the property. To the extent that plaintiffs contend that notice was given in July 2003 following Carr’s unsuccessful attempt to purchase 100% of the property, we note that, pursuant to the explicit terms of the development agreement, Carr’s option to purchase 50% of the property extended to “any time within the first five (5) years after the fee title is purchased by Birnbaum.” As Birnbaum took title to the property in July 1996, the option expired in July 2001. Notably, Carr’s testimony indicates his awareness of this fact. Consequently, plaintiffs failed to demonstrate that Carr satisfied the condition precedent pursuant to the option provision of the development contract and defendants were under no obligation to pay plaintiffs the $102,000 under that provision (see generally Boghosian v SCS Props., 299 AD2d 693, 694-695 [2002]).
Finally, given the existence of an enforceable agreement regarding the disputed subject matter, plaintiffs are not entitled to recover under a theory of unjust enrichment (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]; White v Ivy, 63 AD3d 1236, 1238-1239 [2009]). Plaintiffs’ remaining arguments, to the extent not specifically addressed herein, have been reviewed and are determined to be without merit.
Spain, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.
. For the purposes of this appeal, we do not distinguish between those actions taken by Birnbaum, individually, and those performed by Birnbaum in his capacity as principal of defendant Jay Birnbaum Company or defendant JBJ Queensbury.
. The credit is shown as a development fee to plaintiff Linda Carr. Although she and Birnbaum executed an agreement subsequent to that entered into by Birnbaum, Howard and Carr, the parties here concede that the earlier agreement governs the parties’ respective obligations.
. Defendants have abandoned their cross appeal regarding Supreme Court’s award of management fees.