UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
December 11, 1986
CITY OF YONKERS and YONKERS COMMUNITY DEVELOPMENT AGENCY, Plaintiffs,
OTIS ELEVATOR COMPANY and UNITED TECHNOLOGIES CORPORATION, Defendants
The opinion of the court was delivered by: SPRIZZO
OPINION AND ORDER
Plaintiff City of Yonkers (the "City" or "Yonkers") is a New York municipal corporation, which is a political subdivision of and located in the State of New York. See Complaint ("Compl.") at 1. Plaintiff Yonkers Community Development Agency (the "Agency" or "YCDA") is a New York public benefit corporation, organized for the benefit of, and located in the City. See id. For purposes of this action, both plaintiffs stand in essentially the same posture. See Yulish Dep. at 8-9, 18; Martinelli Dep. at 4-5; Del Bello Dep. at 9.
Defendant Otis Elevator Company ("Otis") is a New Jersey corporation, with its principal executive offices in Farmington, Connecticut. See Compl. at P 3. Otis is a wholly-owned subsidiary of defendant United Technologies Corporation ("United"), a Delaware corporation with its principal place of business in Connecticut. See id. at PP 3-4. In 1975, United acquired a majority of the outstanding stock of Otis, which was merged into United in 1976. See id. at P 9.
The facts underlying the instant action are not in substantial dispute. During the 1960's and early 1970's, Otis undertook an evaluation of the efficiency and productivity of its North American plants engaged in the production of high-speed gearless elevators. By 1968 or shortly thereafter, Otis had concluded that its Yonkers plant would not be able to meet future production requirements. See Defendants' Response to Plaintiffs' 3(g) Stmt. ("Def. 3(g) Resp.") at P 1. Among Otis' considered alternatives were: closing the Yonkers plant and relocating the Yonkers operation to Parsippany, New Jersey, or to some alternate site in Westchester County; expanding and increasing the use of Otis' Canadian and United Kingdom plants to replace the Yonkers operation; and expanding and modernizing the Yonkers plant. See Defendants' 3(g) Statement ("Def. 3(g) Stmt.") at P 1; see also Plaintiffs' 3(g) Statement ("Pl. 3(g) Stmt.") at P 6; Plaintiffs' Exhibits (PXs") 1-2, 64-66, 95; Walker Dep. at 33-36, 38-39, 43-52, 56-59, 264-265; Hull Dep. at 4-5, 13-14; Granville Dep. at 10-13, 16-17, 78-79; Sitaras Dep. at 98-100, 153-55, 238-41; Drummond Dep. at 46-47, 49-59, 66, 70-72, 208-10, 226. Yonkers officials were aware of the possibility that Otis might relocate from Yonkers. See Del Bello Aff. at P 8; Scher Aff. at P 2.
In exploring the possibility of Otis' remaining in Yonkers, plaintiffs and Otis engaged in discussions regarding Otis' need for space to accommodate an expansion and modernization effort in Yonkers. New York State Urban Development Corporation ("NYSUDC") officials were part of these discussions. Compare Def. 3(g) Resp. at P 2 with Pl. 3(g) Stmt. at P 2.
In 1969, commissioned by NYSUDC, see Def. 3(g) Resp. at P 3; the Charles T. Main Company prepared a report detailing the possible use of urban renewal as a device to effect Otis' expansion and modernization in Yonkers. See PX 1 ("the Main Proposal"). While the Main Proposal was rejected by Otis, see, e.g., Pl. 3(g) Stmt. at P 4, the concept of utilizing urban renewal continued to be a focus of the parties. See id. at P 5; Def. 3(g) Resp. at P 5.
Otis and Yonkers officials continued to discuss the possibility of Otis' expansion within Yonkers. Meanwhile, Otis continued its search for other sites, and acquired an option to purchase land in Parsippany. See Pl. 3(g) Stmt. at P 6; Def. 3(g) Resp. at P 6. During 1970-71, George Sitaras, Otis' Manager of Facilities, Production Division, prepared the Modified Urban Renewal Proposal ("MUR"), which recommended the use of an urban renewal program to effectuate an eastward expansion of Otis' existing plant -- in contrast to the Main Proposal's recommendation for the construction of a new facility on land to the west of the existing plant. See Pl. 3(g) Stmt. at P 7; Def. 3(g) Resp. at P 7. No such urban renewal plan existed at the time MUR was written. See Pl. 3(g) Stmt. at P 8. At some time in 1971, Otis told plaintiffs that if an appropriate parcel of land could be made available, Otis would be willing to expand and modernize its Yonkers facilities. See Def. 3(g) Resp. at P 10; Pl. 3(g) Stmt. at P 10.
On June 29, 1971, Dr. Seymour Scher, then Yonkers' City Manager, sent a letter to Otis' president, Ralph Weller. See PX 5. That letter informed Weller that urban renewal funding was available for the purpose of expanding Otis' Yonkers plant, and stated the general terms and conditions that plaintiff expected would apply in their relationship with Otis. It is noteworthy that nowhere in this letter is there any indication that plaintiffs, or HUD, or any other entity would exact in return for urban renewal funding a commitment from Otis to operate its Yonkers plant for any period of time. See id.; see also Scher dep. at 10-13.
On March 7, 1972, Scher wrote a letter to William Granville, Otis' vice-president. See DXs 19-20 (the "Yonkers Proposal Letter"). In that letter, Scher advanced on behalf of plaintiffs certain "preliminary language which together with [Otis'] concerns would ultimately be contained in a formal Letter of Intent." See id. at 1. It is again noteworthy that the author of that letter stated in his deposition that the letter did not "ask any commitment by Otis to operate its Yonkers plant for any period of time." See Scher Dep. at 20.
Morton Yulish, who was at that time Administrator of Yonkers' Department of Development and Executive Director of the Yonkers Urban Renewal Agency, see Yulish Dep. at 8-9, also stated at his deposition that there was no such commitment sought in the letter. See Yulish Dep. at 21-22.
Upon Otis' receipt of this proposal letter, Otis' representatives, primarily Granville and George J. Sitaras, were in contact with Yonkers officials, primarily Scher and Yulish, concerning the signing of a formal "Letter of Intent." See, e.g., Scher Dep. at 20-21; Yulish Dep. at 24-25, Hull Dep. at 9. On June 6, 1972, Otis and plaintiffs signed a Letter of Intent, dated June 5, 1972. See DX 6.
This letter clearly states:
The purpose of this letter and of the commitments set forth herein is the realization of the following goals : .
(a) the retention by Otis of its existing usable manufacturing facilities in Yonkers;
(b) the improvement and expansion of these facilities with the cooperation and assistance of federal, state and local agencies;
(c) the improvement in the aesthetic appearance of the older section of Yonkers in which these facilities are located; and
(d) the continuation of existing opportunities for employment and training of the unemployed and the underemployed, such as are now provided by Otis.
See DX 6 at 1. (emphasis added).
The "commitments" set forth in the Letter of Intent included various land transactions and site improvement agreements. See id. at PP 2-9. All of these "commitments" were expressly subject to various conditions, also set forth in the Letter of Intent. See id. at PP 2-8, 10-11. Again, nowhere in this Letter of Intent does there appear any "commitment" or "agreement" by Otis to "remain" in Yonkers. See id.; Del Bello Dep. at 89; Scher dep. at 23;
see also Def. 3(g) Stmt. at P 10. This Letter of Intent was never approved by the Yonkers City Council. See Ex. N to Mazur Aff. at P 7; Ex. O to Mazur Aff. at 26-27.
At this time, Otis had no intention to leave Yonkers, see Def. 3(g) Stmt. at P 11; see also Weller Dep. at 104-05, 145-48, 161-62, 238, 240-41; Drummond Dep. at 25; Sitaras Dep. at 188; Del Bello Dep. at 93, but there was no binding agreement to stay, and plaintiffs' own employees and officials proceeded as if there were no such agreement. See note 4 supra ; see also Mazur Reply Aff. at PP 2-8.
Indeed, contrary to the impression created by their counsel's arguments on this motion, not even the post-deposition affidavits of various plaintiffs' officials assert that there was ever an objective manifestation of any affirmative agreement by Otis to remain in Yonkers. See Del Bello Aff. at P 10; Dunn Aff. at P 9; Scher Aff. at P 5; Yulish Aff. at P 9.
On June 27, 1972, the Yonkers City Council designated the Warburton-Woodworth Parcel as an urban renewal area. See DX 30; Def. 3(g) Stmt. at P 13. On September 26, 1972, the Yonkers City Council approved an Urban Renewal Plan ("URP" or the "Plan") for NDP area No. 4, see DX 22, which included the Warburton-Woodworth Parcel. This Plan, which was prepared by plaintiffs, see Martinelli Dep. at 72; Del Bello Dep. at 25; Yulish Dep. at 29-32; Yost Dep. at 9-10, sets forth various "development goals," none of which includes requiring Otis to operate its Yonkers plant for any period of time. Compare Def. 3(g) Stmt. at P 14 with Pl. 3(g) Stmt. at P 29. Nowhere in the section entitled "Redevelopers Obligations" or in any other section does the URP purport to require Otis to operate its Yonkers plant for any period of time. Compare Def. 3(g) Stmt. at P 14 with Pl. 3(g) Stmt. at P 29; see also, Yulish Dep. at 33-34; Del Bello Dep. at 32. While the Plan did state that the site would "provide a much needed expansion area for the Otis Elevator Company, a long time industry in the city," see DX 22 at 3, the URP did not state as a goal or condition that Otis be required to operate its Yonkers plant for any period of time. See Del Bello Tr. at 30. HUD also approved the URP. See Yulish Dep. at 55; see also Scher Dep. at 33.
In June of 1973, Otis received from Yulish drafts of a proposed land disposition agreement and deed of conveyance (indenture); which were sent to Mr. Ross, Otis' counsel; the drafts were prepared by Halprin & Goler, the Agency's land disposition attorneys. See DX 23; Yulish Dep. at 84; Del Bello Dep. at 49-50; Martinelli Dep. at 103-04; compare Def. 3(g) Stmt. at P 23 with Pl. 3(g) Stmt. at P 29.
On July 25, 1973, Weller received approval from Otis' board of directors to purchase the Warburton-Woodworth Parcel. See DX 79. Plaintiffs had already obtained approximately $8 million in federal urban renewal funds from HUD and $2 million from New York State for purposes of assembling and clearing the Warburton-Woodworth Parcel; the City contributed approximately $2 million plus portions of certain streets, and the Agency proceeded to assemble and clear the Parcel. See, e.g., DXs 74, 95; Dunn Dep. at 37; see also Def. Rule 3(g) Stmt. at P 23.
On or about July 31, 1974, HUD informed the Agency that HUD had approved a revised disposition price of $1,391,000 for the sale of the Parcel to Otis. See Def. Rule 3(g) Stmt. at P 24. HUD also agreed that any site improvement costs, approved by HUD to be borne by Otis, could be used by Otis as an offset against the purchase price. See DX 10; Yost Dep. at 45, 69; Del Bello Dep. at 16-17. Further drafts of the proposed agreement and indenture were sent by Halprin & Goler to Otis on August 8, 1974. On August 9, 1974, Otis sent a letter to Yost to confirm the $1,391,000 disposition price and that the drafts were satisfactory as to form. See DX 9; Def. 3(g) Stmt. at P 26.
On September 11, 1974, the Yonkers City Council unanimously resolved that the proposed agreement, indenture and purchase price were satisfactory, and approved the sale of the Warburton-Woodworth Parcel to Otis. See DX 29 at 2-3. The Court notes that the Council's resolution did not state or refer to any understanding or agreement that the approved transaction would obligate Otis to remain in Yonkers and/or to operate its Yonkers plant for any period of time.
On September 13, 1974, the Agency and Otis entered into a "Contract for Sale of Land for Private Redevelopment," see DX 12 (the "Land Disposition Agreement" or "LDA"), and the Agency executed an Indenture conveying the Warburton-Woodworth Parcel to Otis. See DX 11 (the "Indenture").
The LDA, which was intended by the parties to be an enforceable agreement, see Casey Dep. at 9, 14-15; Sitaras Dep. at 183; see also Def. 3(g) Stmt. at P 28, is divided into two parts. Part I was prepared by the Agency's attorneys with specific reference to the sale of the Warburton-Woodworth Parcel to Otis; Part II, entitled "Terms and Conditions," is a standard form provided by HUD. See Yost Dep. at 13, 15.
At their depositions, neither Casey nor Yost could recall any discussion of "any written commitment by Otis . . . to operate its plant for a particular period of time after it was constructed." See Casey Dep. at 15; Yost Dep. at 19-20; see also DX 2 (Yost memorandum dated 11/9/76, stating, "both parties have indeed complied with the intent of the agreement in every respect").
Sections 401 and 402 of the LDA and paragraphs 1-3 Of the Indenture speak of Otis' right to transfer its interest in the Warburton-Woodworth Parcel and Improvements. See DX 12 at §§ 401-402; DX 11 at PP 1-3. Article V of the LDA expressly provides that Otis, as the Redeveloper, "may enter into any agreement to sell, lease, or otherwise transfer . . . the Property or any part thereof or interest therein. . . ." See DX 12 at § 503(a)(2).
The Indenture transfers the Parcel to Otis subject to the terms, covenants and conditions of the LDA, and also contemplates the possible sale, lease, or rental of the Parcel by Otis. See DX 11 at 4-6.
Pursuant to paragraph 2 of the Indenture, and following Otis' completion of the redevelopment of the Parcel as specified in § 305 of the LDA, and the dedication of the plant in September of 1976, see Martinelli Dep. at 151-54; DX 51, the Agency issued a Certificate of Completion of Improvements. See DX 48 ("CCI"). The CCI was issued on November 3, 1976, in compliance with § 307(a) of Part II of the LDA.
In early 1976, plaintiffs' attorney John Doherty prepared a proposed agreement between plaintiffs and Otis which related to the Letter of Intent, the LDA, the URP, and "any other applicable written and oral agreements." See PX 49 at 0001908, P III; Yost Dep. at 21-22; Casey Dep. at 10-11. By memorandum dated November 9, 1976 and entitled "Otis Termination Agreement," Yost sent a copy of the proposed agreement to Vincent R. Castaldo, Yonkers City Manager and Chairman of the Agency, with a recommendation that it be executed. See DX 2; Yost Dep. at 20-22.
By his recommendation that the proposed termination agreement be executed, Yost intended "that no party shall have any claim or action against another party for any obligations arising out of [the] Letter of Intent." See Yost Dep. at 26-27, 48. On December 29, 1976, the plaintiffs and Otis executed an agreement, see DX 47, which was substantially in the form proposed by plaintiffs. Compare DX 47 with DX 2 and PX 49; Martinelli Dep. at 160.
Pursuant to the Termination Agreement, Otis paid $63,248.23 to the Agency. See Def. 3(g) Stmt. at P 43. It is undisputed that, at the time the Termination Agreement was executed, Otis had no intention to leave Yonkers at any future time. See id. at P 44. Moreover, during the period from 1972-76, plaintiffs never sought a formal commitment from Otis to operate its Yonkers plant for any period of time, nor did plaintiffs' officials discuss among themselves whether to seek such commitment(s). See id. at P 45; Del Bello Dep. at 18-20; Scher Dep. at 24-25, 27-28, 45-48; Yulish Dep. at 38, 40-42; Dunn Dep. at 85, 87-88, 91-95, 115; Granville Dep. at 121, 151, 243-44.
From 1976 through 1980-81, for technological reasons, Otis' Yonkers plant apparently became obsolete, and continued operation of the plant became economically unjustifiable. See Def. 3(g) Stmt. at P 47, Faure Dep. at 30-33; Weller Dep. at 205-07. Accordingly, Otis made a public announcement of its determination to cease its Yonkers operations on November 30, 1982. See DX 64. Following a series of inflammatory statements and actions by Mayor Martinelli, see, e.g., Mazur Aff. at PP 2-3, and Exs. A-H thereto, plaintiffs filed their complaint in the instant action.
Following extensive discovery, briefing, and arguments, the Court indicated at oral argument, subsequently followed by an Opinion and Order, that the complaint as then drafted, see Compl. at P 24, failed to satisfy New York's Statute of Frauds. The complaint was dismissed without prejudice, with leave to re-plead, and plaintiffs' cross-motion for partial summary judgment was denied.
Despite the fact that the dismissal was without prejudice, plaintiffs' counsel filed a Notice of Appeal. In an effort to dispel any doubt that the Opinion and Order dismissing the complaint without prejudice was a non-final, non-appealable Order, the Court convened a Pre-Trial Conference. See, e.g., Transcript of July 9, 1985 Pre-Trial Conference ("7/9/85 PTC Tr.") at 2-6, 72. The Court directed an affidavit to be filed by plaintiffs' counsel with respect to certain issues that the Court believed would assist it in determining whether the entire complaint should be dismissed with prejudice. Upon the filing of that affidavit, and the receipt of defendants' response thereto, the Court deemed the motion for summary judgment to be fully submitted.
As is clear from the recital of facts set forth above, the essential underlying facts of this case are not in serious dispute. There is no doubt that Otis had operated a manufacturing plant in Yonkers since 1853. There is likewise no question that Otis was contemplating a transfer of that manufacturing facility to another location, i.e., Parsippany, New Jersey. It is also clear that the City of Yonkers was anxious to keep that plant in Yonkers and that Otis was amenable to maintaining its presence in Yonkers, assuming that adequate arrangements could be made which would permit it to expand and modernize its plant, which concededly could not be accomplished without effecting certain land transfer arrangements with the plaintiffs. These arrangements were to be part and parcel of an urban renewal plan approved by HUD that would permit a major portion of that urban renewal to be financed by federal funds.
There is likewise no real dispute that Otis, upon the successful negotiation of satisfactory terms with the plaintiffs, as described above, decided to remain in Yonkers and did not transfer its plant to another location. It thereafter expended approximately $15 million in modernizing and expanding its plant, and $1,390,000 for the Parcel ($539,012.67 in cash, as well as $851,387.33 in site inprovement work). Compare Def. 3(g) Stmt. at PP 36-37 (a)-(b) with Pl. 3(g) Stmt. at P 23. Otis does not deny that it intended to remain in Yonkers for so long as it was commercially feasible do so, and did, in fact, remain there until 1982, when, as it asserts, changing technology rendered the continued operation of its Yonkers plant economically unprofitable. See Def. 3(g) Stmt. at PP 35, 44, 47.
The only issue in serious dispute in this litigation is whether or not there was any contract, express or implied, which required or obligated Otis to maintain and operate this plant for a period of time, which plaintiffs allege in their complaint was "a reasonable period of time, i.e. not less than sixty years." See Complaint at P 24.
Plaintiffs now concede that there was no written contract which in haec verba imposed that obligation on Otis, and do not even contend that there was any express oral promise to that effect, see Affidavit of Vito J. Cassan, dated July 22, 1985 ("Cassan Aff.") at PP 8-9.
Therefore, the Court must first decide whether such an obligation may, consistent with the Statute of Frauds, be imposed on Otis.
Assuming arguendo that the Statute of Frauds does not bar plaintiffs' claim, the Court must then decide whether the facts of this case permit a rational fact finder to infer that Otis agreed to stay in Yonkers for a reasonable period of time, which plaintiffs contend was at least 60 years. See Complaint at P 24; Cassan Aff. at PP 3-5.
For the reasons which follow, the Court concludes that New York's Statute of Frauds applies to the contract alleged in plaintiff's complaint, see, e.g., Dorman v. Cohen, 66 A.D.2d 411, 413, 413 N.Y.S.2d 377, 379 (1st Dept. 1979), that there is no writing or writings sufficient to satisfy the Statute of Frauds, and that, even assuming arguendo that the Statute of Frauds does not bar plaintiffs' claim, the defendants have sustained their burden of demonstrating that no rational finder of fact could find for plaintiffs on the facts of this case, on either a theory of contract (express or implied), equitable estoppel, or unjust enrichment. It follows that summary judgment for defendants must be granted.
1. The Applicability of the Statute of Frauds
The pertinent provision of the New York Statute of Frauds provides:
a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:
1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime. . .
See N.Y. General Obligations Law § 5-701 (McKinney 1978).
In interpreting this provision, the courts have recognized that to some extent the Statute of Frauds is an anachronism, which, rather than preventing frauds and perjuries -- which it was at least in part designed to do -- very frequently has precisely the opposite effect. See, e.g., Ohanian v. Avis Rent A Car System, Inc., 779 F.2d 101, 106 (2d Cir. 1985); D&N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d 449, 453-55, 472 N.E.2d 992, 993-94, 483 N.Y.S.2d 164, 165-66 (1984). As a consequence, the Statute of Frauds has been strictly construed, and courts have been loath to expand it beyond what its terms strictly require. See, e.g., Boening, supra, 63 N.Y.2d at 455, 472 N.E.2d at 994, 483 N.Y.S.2d at 166. Accordingly, the particular provision of the Statute of Frauds at issue here had been held to be inapplicable, where, under any conceivable contingency, however unlikely, the defendant's performance obligation can be discharged in less than a year. See Ohanian, supra, 779 F.2d at 106-07 (2d Cir. 1985); Boening, supra, 63 N.Y.2d at 454-55, 472 N.E.2d at 993-94, 483 N.Y.S.2d at 165-66 (1984).
Nevertheless, it is equally clear that the Statute of Frauds forbids the imposition of a performance obligation on a defendant necessarily extending beyond one year, in the absence of a writing(s) which sets forth all of the essential terms of the agreement imposing that performance obligation. See, e.g., Ginsberg Machine Co. v. J&H Label Processing Corp., 341 F.2d 825, 827 (2d Cir. 1965); Kobre v. Instrument Systems Corp., 54 A.D.2d 625, 626, 387 N.Y.S.2d 617, 618-19 (1st Dept. 1976) aff'd, 43 N.Y.2d 862, 374 N.E.2d 131, 403 N.Y.S.2d 220 (1978); cf. Lauter v. W&J Sloane, Inc., 417 F. Supp. 252, 257-60 (S.D.N.Y. 1976) (and cases cited therein); Boening, supra, 63 N.Y.2d at 456-59, 472 N.E.2d at 994-96, 483 N.Y.S.2d at 166-68; Dorman, supra, 66 A.D.2d at 413, 413 N.Y.S.2d at 379. The crucial question is the "endurance of the defendant's liability." See, e.g., Martocci v. Greater New York Brewery, 301 N.Y. 57, 62-63, 92 N.E.2d 887, 887-89 (1950) (emphasis added). Thus, where no provision of the agreement alleged permits the defendants to discharge that performance obligation in less than a year, the Statute of Frauds applies. See id.; Ohanian, supra, 779 F.2d at 106-07; cf. Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 837 (2d Cir. 1980) (citing Hausen v Academy Printing & Specialty Co., 34 A.D.2d 792, 793, 311 N.Y.S.2d 613, 614, (2d Dept. 1970)); William J. Conlon & Sons, Inc. v. Wanamaker, 583 F. Supp. 212, 216 (E.D.N.Y. 1984); Cohen v. Bartgis Bros. Co., 264 A.D. 260, 260-61, 35 N.Y.S.2d 206, 208 (1st Dept. 1942), aff'd, 289 N.Y. 846, 47 N.E.2d 443 (1943); compare North Shore Bottling Co. v. C. Schmidt & Sons, Inc., 22 N.Y.2d 171, 176-77, 239 N.E.2d 189, 191-92, 292 N.Y.S.2d 86, (1968) (contract that continued for more than one year, but was terminable at will of party against whom it was sought to be enforced, is not within Statute of Frauds).
More specifically, where, as here, an alleged contract which is indefinite as to duration does not, by its terms, permit a defendant to discharge its performance obligations in less than one year, the Statute of Frauds requires a writing setting forth the essential terms of the agreement, including the duration of the defendant's performance obligation. See, e.g., R.G. Group, Inc. v. The Horn & Hardart Co., 751 F.2d 69, 78 (2d Cir. 1984); Roulley v. Inex Co., 677 F.2d 14, 15 (2d Cir. 1982); Maiman v. Luftek, Inc., 88 A.D.2d 946, 947, 451 N.Y.S.2d 183, 184 (2d Dept. 1982); Villano v. G&C Homes, Inc., 46 A.D.2d 907, 907, 362 N.Y.S.2d 198, 200 (2d Dept. 1974); accord, Zupan v. Blumberg, 2 N.Y.2d 547, 550, 141 N.E.2d 819, 820, 161 N.Y.S.2d 428, 429 (1957); Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 54, 57, 110 N.E.2d 551, 553, 555 (1953); Culotta v. Banana Sales Corp., 142 Misc. 149, 149-50, 254 N.Y.S. 84, 86 (Sup. Ct. Monroe Co. 1931).
In this case, plaintiffs are unquestionably seeking to impose a performance obligation on defendants that, under plaintiffs' theory of the contract, cannot be discharged in less than a year. Indeed, plaintiffs claim that Otis breached its contract when it moved from Yonkers after nine years. See. Cassan Aff. at P 8 ("the evidence will be designed to show that a reasonable period of time is longer than Otis did remain"). In the face of that claim, see, e.g., Del Bello Dep. at 89; Dunn Dep. at 62; Scher Dep. at 26; Yulish Dep. at 101; Pl. Memo at 10-11, and their continuing assertion that Otis was obligated to remain at least sixty years, see Compl. at P 24, it is clear that plaintiffs are contending that Otis could not discharge its performance obligation in less than a year without a breach. Cf. Boening, supra, 63 N.Y.2d at 456-57, 472 N.E.2d at 994-95, 483 N.Y.S.2d at 166-67. That being so, the Statute of Frauds applies, and the contract may not be enforced in the absence of a sufficient writing(s). See id. (citing Blake v. Voigt, 134 N.Y. 69, 72, 31 N.E. 256, 256 (1892)); see also Ohanian, supra, 779 F.2d at 107. As the New York Court of Appeals concluded:
Being terminable only by [a] breach, the agreement alleged in the complaint was not one which by its terms could be performed within one year. As such, it came within the ambit of the Statute of Frauds and is void for being unwritten.
Boening, supra, 63 N.Y.2d at 458, 472 N.E.2d at 996, 483 N.Y.S.2d at 168 (emphasis in original).
Moreover, the New York courts have been especially sensitive to the need for a writing in a case such as this one, where plaintiffs have allegedly already performed their obligations under the contract (by transferring the land parcels, condemning the property etc.), and at the same time seek to impose a continuing obligation of performance on the defendants. See North Shore Bottling, supra, 22 N.Y.2d at 178, 292 N.Y.S.2d at 91 (1968). As the courts have recognized, such situations are especially fraught with the dangers of perjury, which the Statute of Frauds was designed to prevent. See, e.g., id.; Boening, supra, 63 N.Y.2d at 453-54, 472 N.E.2d at 994-95, 483 N.Y.S.2d at 165-66.
The Court rejects plaintiffs' argument that the Statute of Frauds can be avoided by the simple expedient of arguing that, there being no express promise to stay for a particular period of time, the law will imply a reasonable period of time, which may be determined by a court or a jury to be less than a year. The Statute of Frauds is designed to insure that a defendant is not subjected to the risk that a jury or a court may find him liable for a contractual obligation which cannot be performed in less than one year, unless that obligation is evidenced by an adequate writing. See Nifty Foods, supra, 614 F.2d at 837; William J. Conlon & Sons, supra, 583 F. Supp. at 216 (E.D.N.Y. 1984); Boening, supra, 63 N.Y.2d at 453-54, 472 N.E.2d at 993, 483 N.Y.S.2d at 165-66; Hausen, supra, 34 A.D.2d at 792, 311 N.Y.S.2d at 614. To allow the plaintiffs to circumvent the Statute of Frauds' writing requirement merely by arguing that the Court or a jury may reject plaintiffs' theory of the case and find that the defendants' contractual liability did not exceed one year, would clearly be inconsistent with the protections that the Statute was designed to afford.
In short, the applicability of the Statute of Frauds cannot turn on what a court or jury, after trial, finds a defendant's performance obligation to be. Instead, it requires that the parties' writing(s) establish the duration of that performance obligation, where the contract alleged cannot be performed in less than one year without a breach. Cf. id. It follows that plaintiffs may not argue, for the purpose of avoiding the Statute of Frauds, that the court or a jury may find that a reasonable period of time is less than one year, while at the same time arguing, for the purpose of imposing liability upon the defendants, that Otis could not perform its obligations under the alleged contract without a breach in less than sixty years. Cf. Boening, supra, 63 N.Y.2d at 458, 472 N.E.2d at 996, 483 N.Y.S.2d at 168.
This is, therefore, not a case like those relied upon by plaintiffs, where the existence of some objectively ascertainable circumstance within the control of the defendant enabled him to discharge his performance obligations without a breach in less than a year, e.g., an oral employment contract expressly limited to the duration of defendant's oil operations in Saudi Arabia. Compare Farmer v. Arab American Oil Co., 277 F.2d 46, 50-51, (2d Cir. 1951), cert. denied, 364 U.S. 824, 5 L. Ed. 2d 53, 81 S. Ct. 60 (1960); cf. Nat Nal Service Stations, Inc. v. Wolf, 304 N.Y. 332, 337, 107 N.E.2d 473, 476 (1952) (by its terms, the contract alleged could conceivable have been performed within one year). In this case, the performance obligation of Otis, according to plaintiffs' theory of the case, is to be measured or determined not by an objective circumstance subject to defendants' control, but rather by what a jury finds the duration of Otis' obligations to be. See, e.g., Plaintiffs' Memorandum of Law In Opposition to Defendants' Motion for Summary Judgment and In Support of Plaintiffs' Motion for Partial Summary Judgment ("Pl. Memo") at 3, 53-60.
Nor do Haines v. City of New York, 41 N.Y.2d 769, 364 N.E.2d 820, 396 N.Y.S.2d 155 (1970); Barco Urban Renewal Corp. v. Housing Authority, etc., 674 F.2d 1001 (3d Cir. 1982); or Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917), support plaintiffs' argument that the Statute of Frauds does not apply in this case. In none of those cases did the court imply a reasonable time for performance with respect to a contract silent as to duration in the context of utilizing that concept. as a vehicle for avoiding the Statute of Frauds. Indeed, in none of these cases was the Statute of Frauds even raised as an issue, and nothing in those cases remotely suggests that a performance obligation exceeding one year may be imposed on a defendant absent a writing, merely because of the possibility that a judge or jury may reject plaintiffs' claim that a reasonable time was more than a year.
Indeed, it is significant that in Haines, there was a written contract which had been performed for over fifty years, and which obligated the City of New York to maintain and extend sewer lines. The only issue was whether the city's obligation was perpetual and whether the city was obliged to expand its treatment facilities by building a new sewage treatment plant or whether, as the city claimed, the absence of a provision as to duration enabled the city to terminate at will. See Haines, supra, 41 N.Y.2d at 772, 364 N.E.2d at 882, 396 N.Y.S.2d at 157. The Haines court rejected both the claim of perpetuality and the claim that the city was obligated to expand its facilities. See id., 41 N.Y.2d at 773, 364 N.E.2d at 823, 396 N.Y.S.2d at 157. However, the Haines court also held that the contract was not terminable at will, because the law would and could imply a reasonable time for performance of the city's obligations under the agreement, which time was found to be for as long as the city needed the water which was being treated by the sewage treatment plant already in existence. See id., 41 N.Y.2d at 772-73, 364 N.E.2d at 822-33, 396 N.Y.S.2d at 157-58.
Therefore, in Haines, it was clear that to regard a contract designed to secure treatment of water supplied to the city, which had been performed on both sides for over fifty years, as terminable at will, merely because of the absence of a time provision, would have frustrated the manifest intent of the parties and deprived the contract of its intended commercial effect. See id., 41 N.Y.2d at 772-73, 364 N.E.2d at 822-23, 396 N.Y.S.2d at 157-58.
Similar situations were presented in Barco Urban Renewal Corp. v. Housing Authority, etc., 674 F.2d 1001 (3d Cir. 1982) and Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917). In Barco, the right of first refusal concededly conferred by the contract would have been bereft of commercial significance if it were to be regarded as terminable at will. See Barco, supra, 674 F.2d at 1010. Consequently, the Court found that that right should exist for a commercially reasonable time. See id. at 1010-11. Similarly, in Wood, where it was clear that the contract intended to confer an exclusive distributorship on plaintiff, the court refused to find that the contract was illusory merely because the plaintiff's obligation of performance, which could reasonably be implied, was not expressly set forth. See Wood, supra, 222 N.Y. at 91-92, 118 N.E. at 214-15.
In the instant case, as defendants quite correctly assert, the imposition of an obligation on Otis to stay in Yonkers for sixty years as an implied term of the agreement is not essential to give commercial effect to either the Letter of Intent or the Land Disposition Agreement. Compare Barco, supra, 647 F.2d at 1010; Haines, supra, 41 N.Y.2d at 773; Wood, supra, 222 N.Y.2d 91-92, and, in fact, is in conflict with the plain language of the Letter of Intent and the LDA. See Defendants' Memorandum of Law In Response to the July 22, 1985 Affidavit and July 30, 1985 Letter of Vito J. Cassan, Esq. ("Def. Resp. Mem.") at 13-15.
The Court therefore concludes that the contract sued upon is within the Statute of Frauds and may not be enforced absent a sufficient writing(s).
2. The Sufficiency of the Writing(s)
(a) Duration As An Essential Term of the Alleged Contract
It is clear under New York law that the writing or writings relied upon to satisfy the Statute of Frauds must contain all of the essential terms of the contract alleged. See Ginsberg, supra, 341 F.2d at 828 (citing Drake v. Seaman, 27 Hun 63, aff'd, 97 N.Y. 230 (1884)). The memorandum required by the statute "must be such that when it is produced in evidence it will inform the court or jury of the essential facts set forth in the pleading, and which go to make a valid contract." Dorman, supra, 66 A.D.2d at 414, 413 N.Y.S.2d at 379 (citing 56 N.Y. Jur. Statute of Frauds § 164; Mentz v. Newwitter, 122 N.Y. 491, 498, 25 N.E. 1044, 1046 (1890)). Although parol evidence is admissible to show that the various writings relied upon are connected to each other, see Crabtree, supra, 305 N.Y. at 55-56, 110 N.E.2d at 554 (1953), it is not admissible to prove an essential term of the contract that is not reflected in the writings. See id. at 55-56, 110 N.E. at 554; see also, Dorman, supra, 66 A.D.2d at 418, 413 N.Y.S.2d at 382.
It is also clear that what is an essential term for purposes of the Statute of Frauds is a flexible concept that depends upon whether that term seriously affects the rights and obligations of the parties, and whether there is a signficiant evidentiary dispute as to whether the parties agreed on that term. See, e.g., Ginsberg, supra, 341 F.2d at 828;
see also Dorman, 66 A.D.2d at 416, 413 N.Y.S.2d at 381 (and cases cited therein). In this case, there can be little question that whether or not Otis bound itself to stay in Yonkers for any period of time or obligated itself to stay sixty years is the only area of dispute, and therefore unquestionably substantially affects the rights of the parties. While the defendants argue, and the Court agrees, that there is no competent proof to support that claim, see Part 3 infra, there can be no question that that issue is seriously disputed. The Court therefore concludes that Otis' alleged agreement to stay for a reasonable period of time, or at least sixty years, as plaintiffs claim, is an essential term that must be reflected in an adequate writing. See Ginsberg, supra, 341 F.2d at 828; cf. Dorman, supra, 66 A.D.2d at 416, 413 N.Y.S.2d at 381 (and cases cited therein).
(b) Lack of A Sufficient Writing(s) to Support Plaintiffs' Contract Claim
The Court has reviewed all of the writings relied on by plaintiffs, see, e.g., Cassan Aff. at P 10(a)-(j), and concludes that none of these writings is sufficient, taken singly or in combination, to support the long-standing obligation to remain in Yonkers which plaintiffs claim Otis assumed. In fact, in none of them is there any support for a commitment to remain in Yonkers for any period (except as required by the Land Disposition Agreement, an obligation that has been concededly discharged, see note 11 supra), much less a reasonable period of time, and certainly nothing that would support a binding commitment by Otis to remain in Yonkers for sixty years. Indeed, a commitment of that magnitude, i.e., to maintain a plant in Yonkers for sixty years, regardless of the commercial viability of such a presence, is so extraordinary that it borders on the irrational to expect that it would have been assumed by any corporation without some writing. No such writing exists.
It is indeed significant that while the writings relied on by plaintiffs are replete with expressions of good will, hope, expectations and good intentions, none contained any binding commitment by Otis to remain in Yonkers for any period of time. Similarly, the deposition testimony of all of those who were directly involved with both the Letter of Intent and the Land Disposition Agreement clearly reflects that, while everyone hoped that Otis would remain in Yonkers for a long period of time -- since it was clear that that was everyone's, including Otis', objective -- see, e.g., Def. 3(g) Stmt. at PP 35, 44, 47, the issue of Otis' making a binding agreement to stay was not even raised or discussed. Moreover, the testimony of defendants' witnesses that, had it been raised, such a proposal would have been rejected, remains uncontradicted.
The only document colorably relevant to plaintiffs' claim is PX 12, wherein Mr. Weller, an Otis representative, makes reference to a "promise not to move."
However, a reading of that statement in context makes it unquestionably clear that that statement refers not to any binding commitment to remain in Yonkers for a specified period of time, but rather to Otis' decision not to relocate, and to Otis' agreement to build its new plant in Yonkers, rather than in New Jersey as previously planned. Otis concededly honored that commitment. It is therefore not colorably sufficient to support a binding commitment to remain in Yonkers for sixty years.
In short, an agreement not to move is not synonymous with a binding agreement to stay, especially a binding commitment to stay for a period of sixty years regardless of what business considerations might in the future dictate a relocation of the plant.
3. Plaintiffs' Failure To Rebutt Defendants' Showing That There Are No Genuine Issues of Material Fact To Be Tried
The Supreme Court has recently reemphasized that a motion for summary judgment must be granted where, taking the plaintiff's evidence in its most favorable light, and affording plaintiff the benefit of every reasonable inference,
no rational jury could find in plaintiff's favor. Thus, in any case in which the Court would be constrained to grant a motion for a directed verdict in defendant's favor, summary judgment is appropriate, because in that situation there is no genuine issue of fact for a jury to try. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, , 106 S. Ct. 2505, 2509-12, 91 L. Ed. 2d 202 (1986). While the Supreme Court first reemphasized that rule in an antitrust case in its most recent term, see Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, , 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1986), it is clear that that standard has general applicability in all civil cases. See Anderson, supra, U.S. at , 106 S. Ct. at 2511, 2514; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-54, 91 L. Ed. 2d 265 (1986).
Tested by those precepts, the defendants' motion for summary judgment must be granted. As noted above, after extensive discovery, the deposition testimony of plaintiffs' own witnesses clearly establishes that Otis never promised to remain in Yonkers; that it never bound itself to stay in Yonkers for any specified period of time; that the issue was never even discussed; and that everyone representing the plaintiffs in connection with the negotiations with Otis never understood that Otis had contractually obligated itself to stay in Yonkers for any period of time, and certainly not sixty years, as alleged in the complaint.
Moreover, the Otis witnesses corroborated this testimony, and further testified that, had that demand been made, Otis would have refused to accept it. See Granville Dep. at 121-22; Hull Dep. at 12, 29-30. That testimony remains, in essence, uncontroverted. See Def. 3(g) Stmt. at P 46. Indeed, in the only instance in which the issue did arise, Otis made it unquestionably clear to representatives of its employees that it was not obliged or bound to remain in Yonkers. See PX 9 at 2-3. In addition, as noted above, the written evidence, e.g., the Letter of Intent, the pertinent correspondence, the Land Disposition Agreement, and the Termination Agreement, do not support the existence of any such commitment, and indeed refute that claim.
Plaintiffs, in the post-deposition affidavits submitted by their witnesses in opposition to defendant's motion for summary judgment, seek to avoid the clear thrust of the deposition testimony of their own witnesses. Those affidavits, however, are not sufficient to defeat defendants' motion for summary judgment.
In the first place, those affidavits cannot properly negate the prior deposition testimony, and it is therefore doubtful that they should or can be afforded any weight. See note 6 supra (and cases cited therein). Moreover, even assuming arguendo that they may properly be considered, they do not set forth any competent proof that Otis made any express promise to stay in Yonkers, much less any agreement to stay in Yonkers for sixty years. At best, they constitute conclusory statements of what these witnesses subjectively may have understood, or hoped, or expected. They are not, therefore, legally sufficient to establish the contractual obligations set forth in plaintiffs' complaint.
It should also be noted that. there is a serious legal question as to whether any parol evidence may properly be considered. Defendants strongly argue that, on plaintiffs' theory of the case, any binding agreement by Otis to stay in Yonkers must necessarily arise out of the Letter of Intent, which was clearly not. intended to be a binding agreement, and/or the Land Disposition Agreement. See Def. Memo at 36-50. Defendants further contend that since that 53-page Land Disposition Agreement and the accompanying Indenture, allegedly drafted by plaintiffs, set forth fully the rights and obligations of the parties (which obligations were extinguished by the clear and unambiguous terms of the Termination Agreement), parol evidence may not be permitted to contradict its terms. The Court agrees with these arguments. Cf. Tokio Marine & Fire Insurance Co. v. McDonnell Douglas Corp., 617 F.2d 936, 940 (2d Cir. 1980); Locafrance U.S. Corp. v. Intermodal Systems Leasing, Inc., 558 F.2d 1113, 1114 (2d Cir. 1977).
This is especially true because the Land Disposition Agreement does deal with the duration of Otis' obligation of performance in that it contains provisions referring to when and how Otis may subsequently transfer the land, and it did require Otis to stay in Yonkers for at least as long as it took to make the improvements which Otis agreed to make. However, even assuming arguendo that parol evidence may properly be considered at trial, the evidence relied on by plaintiffs is simply legally insufficient to sustain a verdict in plaintiffs' favor on the contract claim.
Indeed, plaintiffs' breach of contract claim consists essentially of an invitation to the Court, and perhaps a jury, to conclude that Otis must have agreed to remain in Yonkers, because that is what plaintiffs were seeking to achieve by the land transfers involved. See Pl. Memo at 37-52. However, it was incumbent upon plaintiffs to negotiate that contractual agreement with Otis, and to obtain from Otis a binding commitment to remain in Yonkers. Having failed to do so, they may not now properly seek to have this Court make a contract that the es or made, but failed to make, for themselves. As defendants correctly assert, the concept of a contract implied in fact or law does not permit the Court to make contracts by judicial fiat. See, e.g., Neuman v. Pike, 591 F.2d 191, 194-95 (2d Cir. 1979); Rowe v. Great Atlantic & Pacific Tea Co., 46 N.Y.2d 62, 69, 385 N.E.2d 566, 570, 412 N.Y.S.2d 827, 831 (1978); accord, 5/8/84 Tr. at 22.
Nor may a jury properly infer, from the transfer of the land or from Otis' performance of its obligations with respect to improving the land, that Otis made an oral promise to remain in Yonkers. Both the transfer of the land and the improvements made with respect to the Yonkers properties constituted performance under the Land Disposition Agreement, and, therefore, were not unequivocally referable to any oral promise by defendants to remain in Yonkers for sixty years. Alleged performance may be sufficient to establish an oral contract only when the performance is unequivocally referable to the alleged oral. contract. Cf. Mauala v. Milford Management Corp., 559 F. Supp. 1000, 1004 (S.D.N.Y. 1983); Chromalloy Ameican Corp. v. Universal Housing Systems of America, Inc., 495 F. Supp. 544, 551-52, aff'd mem. op., 697 F.2d 289 (2d Cir. 1982); Philo Smith & Co., Inc. v. USLIFE Corp., 420 F. Supp. 1266, 1271-72 (S.D.N.Y. 1976), aff'd, 554 F.2d 34 (2d Cir. 1977); Ripple's of Clearview, Inc. v. LeHavre Associates, 88 A.D.2d 120, 123, 452 N.Y.S.2d 447, 449 (2d Dept. 1982).
The claim of unjust enrichment stands in no better posture. There is no competent, legally sufficient proof that defendant was unjustly enriched. The claim of unjust enrichment is based entirely on the fact that Otis received certain land parcels pursuant to the Land Disposition Agreement, a small part of which were funded by the plaintiffs, but the major part of which were financed with federal funds. However, independent HUD appraisals, see DX 86 at 1, Del Bello Dep. at 16-17; Martinelli Dep. at 100; Yulish Dep. at 73-74; Yost Dep. at 44-45, confirmed that Yonkers received fair value for this land, compare Def 3(g) Stmt. at P 36 with Pl. 3(g) Stmt. at P 23, which consisted of $539,012.67 in cash, plus Otis' agreement to make certain improvements and to expend certain funds in connection therewith, which obligations Otis performed at a cost of $851,387.33. Plaintiffs also received $63,248.23 in cash from Otis pursuant to the Termination Agreement, and Otis' expended $14 million to renovate and expand its Yonkers facility. Yonkers also received valuable improvements to City services and facilities, as well as the opportunity to purchase from Otis certain waterfront land parcels. See, e.g., Del Bello Dep. at 25-30, 52-54, 78-82; Dunn Dep. at 96-99; Yulish Dep. at 117-18; Martinelli Dep. at 118-20; DXs 30, 62.
Moreover, the Court may not properly assess with hindsight the relative merits of who got the better of the bargain. Where parties bargain at arms length and reach express contractual agreements, and where both parties are commercial equals, the Court may not permit recovery on a theory of unjust enrichment or quasi contract based upon an ex post facto judicial analysis of who profited the most from the transactions. Yet, that is the thrust of the argument made by plaintiffs, to which defendants have dutifully responded. Compare Compl. at P 23; Cassan Aff. at P 11; Pl. Memo at 3, with Def. Reply Memo at 13-15, Def. Resp. Memo at 16-23.
In any event, the Termination Agreement unquestionably settled and resolved all financial obligations between the parties arising out of the Letter of Intent and/or the Land Disposition Agreement. See DX 48; Def. 3(g) Stmt. at P 39; see also note 11, supra. Since plaintiffs' unjust enrichment claim seeks to impose a financial obligation upon defendants based entirely on the transfer of the land pursuant to the Land Disposition Agreement, the Termination Agreement clearly forecloses that claim.
This is especially true because the terms of the Termination Agreement are clear and unambiguous and, therefore, may not be modified by parol evidence. See Locafrance, supra, 558 F.2d at 1114-15; Ruskay v. Waddell, 552 F.2d 392, 395-96 (2d Cir.) cert. denied, 434 U.S. 911, 54 L. Ed. 2d 197, 98 S. Ct. 312 (1977).
Finally, the claim of equitable estoppel lacks merit for several reasons. Firstly, as this Circuit has recently held, a claim of equitable estoppel requires a clear and unambiguous promise, upon which plaintiff has reasonably and foreseeably relied to his detriment under circumstances where the defendant could have reasonably believed that plaintiff would rely on that promise. See Reprosystem, B.V. v. SCM Corp., 727 F.2d 257, 264 (2d Cir. 1984) (citing Ripple's of Clearview, Inc. v. LeHavre Associates, 88 A.D.2d 120, 122, 452 N.Y.S.2d 447, 449 (2d Dept. 1982)). Here, plaintiffs concede that no such promise was made. See, e.g., Cassan Aff. at PP 6-9; Martinelli Dep. at 296-97; Del Bello Dep. at 18-20; Scher Dep. at 24-25; 45-48, Yulish Dep. at 38; Dunn Dep. at 85, 87-88, 92-94, 115. Nor does the evidence permit a rational inference that plaintiffs could have reasonably relied on such a promise or that the defendants could have reasonably believed that plaintiffs would rely on such a promise, even assuming arguendo that one had been made. The circumstances surrounding the Land Disposition Agreement, and the specific obligations assumed and performed by Otis incident thereto, and the clear language of the Letter of Intent, in which Otis' remaining in Yonkers was set forth as a goal and not a binding obligation, negate any such inference, and demonstrate that plaintiffs cannot sustain their claim of equitable estoppel as a matter of law. See 7/9/85 PTC Tr. at 47.
This is especially true since New York law, which is concededly applicable, seriously restricts concepts of equitable estoppel in cases such as this one, involving land transfers and other contracts subject to the Statute of Frauds, particularly where as here, Otis concededly performed all of its obligations under the Land Disposition Agreement. See, e.g., Huggins v. New Castle Estates, Inc., 36 N.Y.2d 427, 432, 330 N.E.2d 48, 53, 369 N.Y.S.2d 80, 86 (1975); cf. Philo Smith & Co. v. USLIFE Corp., 554 F.2d 34, 36 (2d Cir. 1977); Tribune Printing Co. v. 263 Ninth Avenue Realty, Inc., 88 A.D.2d 877, 879, 452 N.Y.S.2d 590, 592-93 (1st Dept. 1982), aff'd, 57 N.Y.2d 1038, 444 N.E.2d 35, 457 N.Y.S.2d 785 (1982); Swerdloff v. Mobil Oil Corp., 74 A.D.2d 258, 263, 427 N.Y.S.2d 266, 270 (2d Dept.), leave to appeal denied, 50 N.Y.2d 913, 409 N.E.2d 995, 431 N.Y.S.2d 523 (1980).
In sum, the facts of this case present at best a serious and good-faith effort by plaintiffs and Otis to maintain and continue a long-standing and mutually beneficial relationship which was profitable to Otis and a source of employment for residents of Yonkers. That effort did not succeed. However, crushed hopes and disappointed expectations are not synonymous with the breach of a contractual obligation. Giving the plaintiffs the benefit of every reasonable inference, that is what the evidence at trial will establish. Under those circumstances, the defendants are entitled to summary judgment.
4. The Application for Rule 11 Sanctions
By Opinion and Order dated June 28, 1985, the Court awarded Rule 11 sanctions against plaintiffs and plaintiffs' counsel based on the fact that plaintiffs' fraud claims, since withdrawn, lacked any colorable factual basis. The Court still believes that position to be correct and adheres to that ruling.
Defendants also seek Rule 11 sanctions with respect to plaintiffs' contract claims. The Court denies that application.
While the Court has concluded that those claims are barred by the Statute of Frauds and, in any event, cannot be legally sustained at trial, the Court cannot conclude that plaintiffs' arguments, and more particularly the claim that the New York case law with respect to implying a reasonable time for the performance of a contract silent as to duration renders the Statute of Frauds inapplicable, are so lacking in legal support, under. either existing law or a rational argument for the extension of existing law, as to warrant the imposition of Rule 11 sanctions. Cf. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir. 1985).
While it is true that some of the statements made by one of plaintiffs' officials, i.e. Mayor Martinelli, suggest that this action was motivated, at least in part, by a desire to punish and harrass Otis, see Mazur Aff. at PP 2-3, and Exs. A-H attached thereto, those statements are not binding on other plaintiffs. Moreover, even a bad-faith motive does not justify Rule 11 sanctions, where as here, the Court has concluded that the arguments advanced are not lacking in colorable legal support. As the Second Circuit has held, and recently reiterated, Rule 11 sanctions must be assessed in accordance with an objective, rather than a subjective standard of good faith, and the rule is violated only when it is "patently clear that a claim has absolutely no chance of success." See Oliveri v. Thompson, Nos. 803 F.2d 1265, slip op. at 6287 (2d Cir. 1986) (citing Eastway, supra, 762 F.2d at 253-54).
The defendants' motion for summary judgment is granted. Defendants' motion for Rule 11 sanctions has been previously granted as to the fraud claim in the amount of $5000.00, to be imposed jointly upon plaintiffs and their counsel, but denied in all other respects. The Clerk of the Court shall enter judgment accordingly.
It is SO ORDERED.
Dated: New York, New York
December 11, 1986