City of Yonkers v. Otis Elevator Co.City of Yonkers v. Otis Elevator Co.
OPINION & ORDER
Defendants move for summary judgment against plaintiffs, raising an assortment of defenses including among оthers the New York Statute of Frauds, N.Y. Gen.Obl.Law § 5-701(a)(l). The contract alleged in the complaint, requires defendant Otis Elevator Company to stay in Yonkers for a reasonable period, but not less than sixty years. See Complaint, ¶ 24 (“The period of time for performance by Otis and United of these obligations due to Yonkers and the Development Agency is for a reasоnable time to be set by law, and is alleged to be at least sixty years.”). That contract, thеrefore, by its terms cannot be performed within a year. 1
The Court has been directed tо no memo-randa signed or prepared by the defendants even arguably sufficient to sаtisfy the statute of frauds with respect to that agreement, although the Court has been provided with an extensive amount of documentation with respect to defendants’ motion. It follows that the complaint, as presently drafted, must be dismissed and the defendants’ motion must be grаnted.
There has, however, been some confusion as to exactly what the plaintiffs now contend the contract to be. Both in the papers, and especially on oral argument of the motions, counsel for the plaintiffs maintained that the contract wаs for a reasonable time, that its duration was indefinite and that the Court could determine its lеngth through appropriate proof.
The vague and elusive nature of these clаims makes it difficult, if not impossible, for the Court to adequately assess the sufficiency of the dеfenses made and the applicability of the parol evidence rule. There аlso seems to be some confusion as to what plaintiffs presently claim the preсise terms and obligations of the alleged contract are. Therefore, in the interest of justice and to afford the plaintiffs the opportunity to clarify these issues in a new pleading, the *1418 Court directs that the dismissal of the plaintiffs’ complaint be without prejudice.
The plaintiffs shall file an amended complaint on or before June 18, 1985, specifying the nature of the contract which they claim to exist, the terms and obligations of each party thereunder, whether that contract was oral or written, and its alleged duration. The defеndants shall then file a motion to dismiss and/or for summary judgment on or before July 18, 1985; the plaintiffs shall respond to that motion on or before August 19, 1985; the defendants shall reply on or before October 1, 1985, and a Pre-Trial Conference shall be held on January 17, 1986 at 10:00 A.M. Plaintiffs’ cross-motion for рartial summary judgment is denied. 2
It is SO ORDERED.
Notes
. The Court is not persuaded by plaintiffs' argument that the contract сould have been performed within a year. What a contract is turns upon the expressed intent of the parties and here, if the allegations of the complaint are tаken as true, the plaintiffs claim that the parties intended that the agreement would last for at least sixty years. The plaintiffs may not urge a theory of the contract for purposes of resisting a defense based upon the statute of frauds that is inconsistent with what the plаintiffs allege the contract to be in the complaint.
Cf. Ginsberg Machine Co. v. J & H Label Processing Corp.,
This is especially true where, as here, if this contract were one that could be performed within a year, there might well be no breach as a mattеr of law. It is undisputed that Otis has remained in Yonkers for more than a year since the contract was allegedly made. In fact, at oral argument counsel for the parties indicаted that defendants have not yet totally left Yonkers.
. There has been a suggestion throughout this litigation that the plaintiffs' action has been brought for political reasons, and for а vindictive purpose. See, e.g., Affidavit of Robert B. Mazur In Support of Defendants’ Motion for Summary Judgment, Exhibits A-I. The Court cannot presently assess the merits of that contention, although the shifting contours оf plaintiffs' contractual assertions and the overall history of the case may lend this suggеstion some credence. As one additional example, the Court notes that plаintiffs did not withdraw their fraud claim until after defendants had filed and served this summary judgment motion. Suffice it to say that if the Court later concludes that the action was brought in bad faith, the Court will not hesitate to impose whatever sanctions are appropriate under Rule 11.