Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lotz v. Charles Crosby & Son

July 14, 2009

CYNTHIA LOTZ, PLAINTIFF,
v.
CHARLES CROSBY & SON, INC. D/B/A, MERLIN DEVELOPMENT CORPORATION, DEFENDANT-COUNTERCLAIM PLAINTIFF,
v.
BRUCE LEVINSKY INTERVENOR-COUNTERCLAIM PLAINTIFF.



MEMORANDUM-DECISION AND ORDER

The instant action arises out of two contracts that Plaintiff Cynthia Lotz ("Plaintiff" or "Lotz") allegedly entered into with Defendant Charles Crosby & Son, Inc. d/b/a Merlin Development Corporation ("Merlin" or "Defendant") and Intervenor-Defendant Bruce Levinsky ("Intervenor" or "Levinsky"), respectively. See generally Complaint (Dkt. No. 1); Answer (Dkt. No. 7); Answer and Counterclaim of Defendant-Intervenor (Dkt. No. 16). Presently before this Court is Plaintiff's partial Motion for summary judgment. Dkt. No. 30.

I. BACKGROUND

Levinsky resides in Saratoga Springs, New York and is the president and sole owner of Merlin, a corporation with its principal place of business in Saratoga Springs, New York. Lotz Aff. ¶ 6 (Dkt. No. 30). Lotz currently resides in Florida; however, throughout the 1990s Lotz lived in the Albany area where she worked in the field of commercial real estate. Id. ¶¶ 8-12. While living and working in the Capital District, Lotz began a romantic relationship with Levinsky. Id. ¶ 13. In 1999, Lotz left the Capital District to take a job as a Managing Director and Senior Vice President at Grubb and Ellis in Melville, New York. Id. ¶ 10. She and Levinsky continued to maintain a long-distance relationship and discussed the possibility of Lotz terminating her employment at Grubb and Ellis in order to move back to the Capital District and live with Levinsky. Id. ¶¶ 13, 15, 17.

According to Lotz, she obtained adequate business assurances to prompt her to leave her job at Grubb and Ellis when she and Levinsky discussed a business agreement which formed the basis for the Consulting Agreement ("Consulting Agreement"), the first contract in dispute. Id. ¶ 18. In early 2001, she left her job at Grubb and Ellis and returned to Saratoga Springs to live with Levinsky. Id. ¶¶ 18-19. Levinsky contends that he made no such verbal agreement with Lotz to enter into the Consulting Agreement on behalf of Merlin which would have prompted her to leave her prior employment. Levinsky Aff. ¶ 4 (Dkt. No. 32). Instead, Levinsky maintains that Lotz was determined to live with Levinsky in Saratoga and this is what ultimately prompted her to leave her job at Grubb and Ellis. Id. The legitimacy and enforceability of the Consulting Agreement is disputed in this action.

Lotz proffers that on January 2, 2003, she and Merlin fully executed a three-year Consulting Agreement whereby Lotz would be compensated one hundred thousand dollars ($100,000) per year for advice, management, support, and general consultation to Merlin in connection with the leasing and acquisition of commercial real estate. Lotz Aff. ¶ 3 & Ex. A. According to Lotz, she provided services and general consultation to Merlin on at least thirteen (13) projects and acted as a liaison on behalf of Merlin with over fifty (50) individuals. Lotz Aff. ¶ 38; Ex. J, Response #6. In contrast, Levinsky reports that in 2001 Lotz became interested in purchasing a condominium the couple had rented in Florida and requested that Levinsky sign a Consulting Agreement she drafted to demonstrate employment and ultimately enhance her credit and obtain a mortgage. Levinsky Aff. ¶ 6. According to Levinsky, however, the Consulting Agreement was a "sham," as its purpose was not related to employment at Merlin but rather to aid Lotz in the mortgage approval process. Id. ¶¶ 11, 31. Levinsky contends that Lotz never performed pursuant to the Consulting Agreement nor did she ever make a demand for any money under the Consulting Agreement prior to this lawsuit. Id. ¶¶ 18-19. Lotz never received any money payments from Merlin pursuant to the Consulting Agreement. Lotz Aff. ¶¶ 32-35.

In May 2005, Lotz and Levinsky ended their romantic relationship. Id. ¶ 42. As the parties had been living together for a significant period of time, they had intertwined personal affairs that needed to be resolved. See generally id. ¶¶ 61-71. The parties wished to divide ownership of the personal property contained within the apartment they shared, the gifts they had received as a couple, as well as the two properties they co-owned in New York and Florida. Id. ¶ 61. Both parties agree that on May 19, 2005, Plaintiff and Intervenor executed the second contract in dispute (the "Accord") in order to settle their outstanding personal issues. Sabo Aff., Ex. I (Dkt. No. 30); Lotz Aff. ¶ 61-71; Answer and Counterclaim of Defendant-Intervenor ¶ 22. Lotz accepted all the benefits of the Accord. Answer and Counterclaim of Defendant-Intervenor ¶ 16; Plaintiff's Answer to Counterclaim of Defendant-Intervenor ¶ 4 (Dkt. No. 22).

Plaintiff filed her Complaint in this matter on December 10, 2007, alleging breach of contract against Defendant Merlin in regard to the Consulting Agreement. See generally Complaint. Plaintiff contends that she and Defendant executed a binding contract, she fully performed pursuant to the contract, and Defendant breached the Consulting Agreement by failing to make payments to Plaintiff as provided for in the Consulting Agreement. Id. ¶¶ 20-24. On February 11, 2008, Defendant filed its Answer denying that the Consulting Agreement was an enforceable contract and counterclaimed for breach of contract as to the Accord. Def. Answer ¶¶ 22-23. Specifically, Defendant's counterclaim is based on the theory that the Accord was intended to resolve all outstanding claims between Lotz and Levinsky and insofar as Levinsky is the sole shareholder of Merlin, the Accord was intended for the immediate benefit of Defendant. Id. Defendant therefore claims that Plaintiff breached the Accord by suing for performance of the Consulting Agreement. Id. Levinsky, Defendant's sole shareholder and principal, intervened in this action and counterclaimed on June 30, 2008 alleging inter alia breach of the Accord. See generally Answer and Counterclaim of Defendant-Intervenor ¶¶ 23-25.

On February 17, 2009, Plaintiff filed the Motion for summary judgment that is presently before this Court. Motion (Dkt. No. 30). Defendant and Intervenor filed their Memorandum of law in opposition to Plaintiff's Motion for summary judgment on March 3, 2009. Dkt. No. 32. Plaintiff subsequently filed her reply. Dkt. No. 33.

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Thus the inquiry becomes whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court is required to "resolve all ambiguities, and credit all factual inferences that could be rationally drawn, in favor of the party opposing summary judgment." Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001); Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001).

Once the moving party has met its initial burden, the non-moving party may preclude summary judgment by "com[ing] forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 252. In order to survive a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The non-moving party may survive the motion for summary judgment "by coming forward with evidence that would be sufficient... to establish the existence of [an] element at trial." Grain Traders Inc. v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

A motion for summary judgment in a breach of contract claim may be granted only when the contractual language on which the moving party's case rests is found to be wholly unambiguous and to convey a definite meaning. Compagnie Financiere de CIC et de L'Union Europeenne v. Merill Lynch, Pierce, Fenner & Smith Inc., 232 F.3d 153, 157-58 (2d Cir. 2000). "An ambiguity exists where the terms of [the agreement] could suggest 'more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.'" Int'l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 83 (2d Cir. 2002) (quoting Morgan Stanley Group Inc. v. New England Ins. Co., 225 F.3d 270, 275 (2d Cir. 2000)); see Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 313 (2d Cir. 1981). If the contract is unambiguous, courts must interpret the contract to give effect to its terms and "cannot and should not accept an interpretation that ignores the interplay of the terms, renders certain terms 'inoperable,' and creates a conflict where one need not exist." Pearce, Urstadt, Mayer & Greer Realty Corp. v. Atrium Dev. Assocs., 77 N.Y.2d 490, 571 (N.Y. 1991) (citing Chimart Assocs. v. Paul, 66 N.Y.2d 570, 573 (N.Y. 1986)). "[O]nly where the language and the inferences to be drawn from it are unambiguous" may a court "construe a contract as a matter of law and grant summary judgment." Cable Sci. Corp. v. Rochdale Vill., Inc., 920 F.2d 147, 151 (2d Cir. 1990) (citing American Home Assurance Co. v. Baltimore Gas & Elec. Co., 845 F.2d 48, 50-1 (2d Cir. 1988)).

III. DISCUSSION

Plaintiff concedes that Defendant produced affidavits creating questions of fact as to whether Plaintiff performed pursuant to the terms of the Consulting Agreement, thereby precluding summary judgment on Plaintiff's sole claim. Reply Memo. of Law at 1 (Dkt. No. 33). Plaintiff now seeks partial summary judgment with respect to all ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.