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West Vernon Petroleum Corp. v. Singer Holding Corp.

Supreme Court of New York, Second Department

February 6, 2013

West Vernon Petroleum Corp., appellant-respondent.
v.
Singer Holding Corp., defendant. Almeida Oil Co., Inc., et al., respondents-appellants. Index No. 12514/04

Robert A. Roseman, New York, N.Y., for appellant-respondent.

Law Offices of Sanford F. Young, P.C., New York, N.Y., for respondents-appellants.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals (1) from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered October 1, 2010, as denied its application for prejudgment interest prior to August 7, 2009, and (2) from so much of a judgment of the same court, entered November 5, 2010, as, upon an order of the same court entered April 5, 2010, granting those branches of its motion which were for summary judgment on the fifth cause of action of the amended complaint and dismissing the tenth counterclaim of the defendants Almeida Oil Co., Inc., West Vernon Energy Corp., Robert F. Almeida, and Robert B. Almeida, and upon an order of the same court entered October 1, 2010, inter alia, upon renewal, adhering to its original determination in the order entered April 5, 2010, is in favor of it and against those defendants awarding it the sum of only $64, 900.68 in prejudgment interest, and those defendants cross-appeal from the same judgment, which is in favor of the plaintiff and against them jointly and severally in the principal sum of $603, 737.19, plus prejudgment interest in the sum of $64, 900.68.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, those branches of the plaintiff's motion which were for summary judgment on the fifth cause of action of the amended complaint and dismissing the tenth counterclaim of the defendants Almeida Oil Co., Inc., West Vernon Energy Corp., Robert F. Almeida, and Robert B. Almeida are denied, the order entered April 5, 2010, is modified accordingly, the order entered October 1, 2010, made, in part, upon renewal, is vacated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith; and it is further,

ORDERED that one bill of costs is awarded to the defendants Almeida Oil Co., Inc., West Vernon Energy Corp., Robert F. Almeida, and Robert B. Almeida.

The underlying facts are described in our decision and order on a related appeal (see West Vernon Petroleum Corp. v Singer Holding Corp., ______A.D.3d______, Appellate Division Docket No. 2010-04263 [decided herewith]). After the Supreme Court granted, in part, the plaintiff's motion for summary judgment, the plaintiff submitted, for settlement, signature, and entry, a proposed judgment in its favor on the fifth cause of action of the amended complaint. Almeida Oil Co., Inc., West Vernon Energy Corp., Robert F. Almeida, and Robert B. Almeida (hereinafter collectively the Almeida defendants) submitted a counter-proposed judgment. In an order entered October 1, 2010, the Supreme Court, in relevant part, rejected both proposed judgments, with leave to submit a revised proposed judgment in accordance with its determination that prejudgment interest should be awarded from August 7, 2009. Judgment was then entered in favor of the plaintiff and against the Almeida defendants in the principal sum of $603, 737.19, plus prejudgment interest of $64, 900.68. All other causes of action were severed.

On its appeal, the plaintiff challenges, on the grounds of inadequacy, the award of only $64, 900.68 in prejudgment interest. The Almeida defendants cross-appeal from the entire judgment.

The fifth cause of action of the amended complaint sought to recover payment of "additional license fees" referable to every gallon of petroleum products in excess of 40 million gallons sold at a particular terminal from the inception of the subject license agreement. The relevant provision of the license agreement recited:

"During the term of this license the licensee shall pay to the licensor $.0075 per gallon on all gallonage that exceeds 40 million gallons (defined as all products sold). The additional license fee is to be paid together with the license fee on the 7th day of the month following that when billed."

The term of the license was defined as two years, with one five-year renewal option.

"[A] contract is to be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms'" (MHR Capital Partners LP v Presstek, Inc., 12 N.Y.3d 640, 645, quoting Greenfield v Philles Records, 98 N.Y.2d 562, 569). Contrary to the Almeida defendants' contention, the Supreme Court properly determined that the additional license fee provision unambiguously provided for payment on all gallonage exceeding 40 million gallons during the term of the license, including the renewal period (see Dime Sav. Bank of N.Y. v Montague St. Realty Assoc., 90 N.Y.2d 539, 543; Kunze v Arito, Inc., 48 A.D.3d 272). Accordingly, the plaintiff established its entitlement to judgment as a matter of law by demonstrating that no additional license fees were paid, and by submitting documentation of the gallonage sold above 40 million gallons during the term of the license agreement.

However, the Almeida defendants raised a triable issue of fact as to whether the language of the additional license fee provision was a product of the parties' mutual mistake, as alleged in their tenth counterclaim, which was for reformation of the provision. Contrary to the plaintiff's contention, the Almeida defendants did not ...


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