Catherine Cahill, appellant. (Action No. 2)
Esseks, Hefter & Angel, LLP, Riverhead, NY (Anthony C.
Pasca of counsel), for appellant-respondent in Action No. 1
and appellant in Action No. 2.
Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP,
Uniondale, NY (Jeffrey G. Stark of counsel), for
respondents-appellants in Action No. 1 and respondents in
Action No. 2.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action, inter alia, in effect, for a judgment declaring the
rights and obligations of the parties under an operating
agreement of a limited liability company and to recover
damages for fraud (Action No. 1), and a related action, inter
alia, to recover damages for conversion (Action No. 2), which
were joined for trial, (1) Catherine Cahill, as executrix of
the estate of Marvin Hyman, a defendant in Action No. 1,
appeals, as limited by her brief, from so much of a judgment
of the Supreme Court, Suffolk County (Baisley, Jr., J.),
dated May 20, 2014, as, upon a decision of the same court
dated April 21, 2014, made after a nonjury trial, declared
that she is required to restore the sum of $1, 045, 400 to
the account of Buckskill Farm, LLC, a plaintiff in Action No.
1, and the plaintiffs cross-appeal, as limited by their
brief, from so much of the same judgment as failed to award
them treble damages for an alleged violation of Judiciary Law
§ 487, and (2) Catherine Cahill, individually, the
defendant in Action No. 2, appeals, as limited by her brief,
from so much of a judgment of the same court, also dated May
20, 2014, as, upon the decision, is in favor of Buckskill
Farm, LLC, a plaintiff in Action No. 2 and against her in the
principal sum of $1, 045, 400.
that the first judgment is affirmed insofar as appealed and
cross-appealed from; and it is further, ORDERED that the
second judgment is affirmed insofar as appealed from; and it
is further, ORDERED that one bill of costs is awarded to the
previously set forth, in part, in our decision and order on a
prior appeal (see Gerard v Cahill, 66 A.D.3d 957),
the plaintiff Nelson Gerard and the decedent, Marvin Hyman,
formed the plaintiff Buckskill Farm, LLC (hereinafter
Buckskill; hereinafter together the plaintiffs), for the
purpose of purchasing a 9.6-acre parcel of property located
in the Town of East Hampton, which they planned to subdivide
into a number of lots, plus an agricultural reserve area.
Buckskill's operating agreement required Gerard to make a
capital contribution in the sum of $2, 000, 000, and required
Hyman to make a capital contribution in the sum of $350, 000.
After acquiring the property, Gerard and Hyman encountered
difficulty obtaining subdivision approval and Hyman proposed
that they accept an offer by the Town to purchase 6.8 acres
of the property. Gerard responded that, if the property was
sold to the Town, Hyman should permit Buckskill to redeem his
interest in the company for the sum of $850, 000, or one lot,
at Hyman's option. Gerard contends that Hyman agreed to
this proposal. However, the defendant Catherine Cahill, as
executrix of the estate of Marvin Hyman, and Catherine
Cahill, individually (hereinafter Cahill), who was
Hyman's wife, maintains that Hyman did not accept
subsequently conveyed the 6.8-acre parcel to the Town for the
sum of approximately $1, 900, 000, and the proceeds were
deposited into Buckskill's bank account. Hyman then wrote
a check on that account in approximately that amount, payable
to himself, claiming that he was entitled to the proceeds of
the sale pursuant to Buckskill's operating agreement.
Thereafter, in 2005, the plaintiffs commenced Action No. 1,
seeking, inter alia, in effect, a judgment declaring the
rights and obligations of the parties under the operating
agreement and the alleged oral agreement, to redeem
Hyman's interest in the real property, and to recover
damages for fraud. In 2007, the plaintiffs commenced Action
No. 2 against Cahill, individually, inter alia, to recover
damages for conversion, alleging that the proceeds of the
sale had been deposited by Hyman into a joint account held by
them before his death. The actions were joined for trial.
Following the trial, the Supreme Court determined that Hyman
had agreed to allow Buckskill to redeem his interest in the
company for the sum of $850, 000, or one lot, at his option,
in exchange for Gerard's agreement to approve the sale of
the subject property to the Town, and directed Cahill, inter
alia, to restore the sum of $1, 045, 400 to Buckskill's
reviewing a determination made after a nonjury trial, this
Court's power is as broad as that of the trial court, and
it may render the judgment it finds warranted by the facts,
taking into account that in a close case the trial court had
the advantage of seeing and hearing the witnesses"
(BRK Props., Inc. v Wagner Ziv Plumbing & Heating
Corp., 89 A.D.3d 883, 884; see Northern Westchester
Professional Park Assoc. v Town of Bedford, 60 N.Y.2d
492, 499; Bryant v Broadcast Music, Inc., 143 A.D.3d
934, 935). "Where the trial court's findings of fact
rest in large measure on considerations relating to the
credibility of witnesses, deference is owed to the trial
court's credibility determinations" (Bennett v
Atomic Prods. Corp., 132 A.D.3d 928, 930; see Neiss
v Fried, 127 A.D.3d 1044, 1045). Here, contrary to
Cahill's contention, the Supreme Court's
determination that Hyman agreed to allow Buckskill to redeem
his interest in the company for the sum of $850, 000, or one
lot, if the subject property was sold to the Town, was
warranted by the facts. The court specifically found that
Cahill's testimony was not credible, and there is no
basis to disturb the court's determinations (see
Lawson-Groome v Smalls, 144 A.D.3d 633, 634; Pappas
v Liapes, 138 A.D.3d 943, 944).
parties' remaining contentions are without merit.
the Supreme Court properly directed Cahill, inter alia, to
restore the sum of ...