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Kimso Apartments, LLC v. Gandhi

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


September 22, 2009

KIMSO APARTMENTS, LLC, ETC., ET AL., PLAINTIFFS/ COUNTERCLAIM DEFENDANTS-APPELLANTS, ET AL., PLAINTIFF,
v.
MAHESH GANDHI, DEFENDANT/COUNTERCLAIM PLAINTIFF- RESPONDENT
v.
ARLINGTON FILLER, ET AL., ADDITIONAL COUNTERCLAIM DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS.

In an action, inter alia, to recover damages for breach of contract, the plaintiffs/counterclaim defendants Kimso Apartments, LLC, and Poonam Apartments, LLC, and the additional counterclaim defendant Amity Park Associates appeal, and the additional counterclaim defendants Arlington Filler and Darshan Shah separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated March 20, 2008, as, in effect, denied those branches of their respective motions which were for partial summary judgment dismissing the defendant Mahesh Gandhi's counterclaims on the ground that they are barred by certain releases.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., FRED T. SANTUCCI, RANDALL T. ENG and PLUMMER E. LOTT, JJ.

(Index No. 13489/03)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the defendant Mahesh Gandhi payable by the appellants appearing separately and filing separate briefs.

The appellants failed to establish their prima facie entitlement to judgment as a matter of law that the defendant Mahesh Gandhi's counterclaims are barred by a document entitled "Release of Shares in Escrow" and another document entitled "Affidavit and Release" (hereinafter together the releases), both executed by Gandhi on August 15, 2002. The record demonstrates that the releases were part of a larger settlement agreement entered into between the parties in a federal action on the same date. Accordingly, the releases should be construed in the context of the whole agreement, and their words considered not in isolation but in light of the obligation as a whole and the intention of the parties as manifested thereby (see Tankers Intl. Nav. Corp. v National Shipping & Trading Corp., 116 AD2d 40, 46). As the Supreme Court found numerous issues of fact surrounding the prior settlement between the parties, it properly declined to grant summary judgment to the appellants dismissing Gandhi's counterclaims on the basis of the releases.

MASTRO, J.P., SANTUCCI, ENG and LOTT, JJ., concur.

20090922

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