& Abramson, P.C., New York (Bruce Meller of counsel), for
Levin Naftalis & Frankel LLP, New York (Harold P.
Weinberger of counsel), for FCRC Modular, LLC, FC Modular,
Forest City Ratner Companies, LLC and Forest City
Enterprises, Inc., respondents.
Montgomery McCracken Walker & Rhoads LLP, New York
(Charles Palella of counsel), for Berlin Rosen Ltd.,
piper (US), New York (Joseph Alonzo of counsel), for
Greenland U.S. Holding, Inc., respondent.
Acosta, P.J., Friedman, Richter, Kapnick, JJ.
Supreme Court, New York County (Saliann Scarpulla, J.),
entered August 8, 2016, which, insofar as appealed from as
limited by the briefs, granted plaintiffs' and
third-party defendants' motion to dismiss the
counterclaims and third-party claims under CPLR 3211(a)(1)
and (7), and denied as moot defendants/third-party
plaintiffs' (appellants) motion to hold nonparties Berlin
Rosen Ltd. and Greenland U.S. Holding, Inc. in civil contempt
for failure to respond to a subpoena duces tecum, unanimously
affirmed, without costs. Order, same court and Justice,
entered September 5, 2017, which, among other things, denied
appellants' motion, made pursuant to CPLR 2221(e) and
5013(a)(3), for leave to renew and vacate the orders entered
August 8, 2016, unanimously affirmed, without costs.
motion court correctly dismissed appellants'
counterclaims and third-party claims for breach of the
Limited Liability Company Agreement (LLC Agreement) between
plaintiff FCRC Modular, LLC (FCRC Modular) and
defendant/third-party plaintiff Skanska Modular LLC (Skanska
Modular). Initially, we reject appellants' veil-piercing
arguments and decline to treat plaintiffs and third-party
defendants as alter egos of each other (see Skanska USA
Bldg. Inc. v Atlantic Yards B2 Owner, LLC, 146 A.D.3d 1,
12-13 [1st Dept 2016]). Further, the Opportunity Brief, a
business proposal or brochure, was at most a nonbinding offer
to enter into a joint venture, and insufficient to form the
basis of a breach of contract claim (see Restatement
[Second] of Contracts § 26 [no binding offer created by
proposal when parties intend "further manifestation of
assent" in the future]; Aksman v Xiongwei Ju,
21 A.D.3d 260');">21 A.D.3d 260 [1st Dept 2005], lv denied 5 N.Y.3d
§ 2.11 of the Construction Management and Fabrication
Services Agreement (CM Agreement) did not incorporate
extracontractual representations into the agreement so as to
give rise to a breach of contract claim by Skanksa Modular.
By its plain terms, § 2.11 permits nonparty Skanska USA
Building Inc. (Skanska USA), not Skanska Modular, to rely
upon "information supplied to it by or on behalf of
Owner and its Affiliates." In addition, § 2.11,
read as a whole, was intended to excuse Skanska USA from
liability arising from design deficiencies, not to provide a
means for it to sue for breach of contract. Moreover, the
merger clause in the CM Agreement bars breach of contract
claims based on extracontractual promises (see ESG
Capital Partners II, LP v Passport Special Opportunities
Master Fund LP, 2015 WL 9060982, *11-15, 2015 Del Ch
LEXIS 302, *34-45 [Del Ch 2015]; Kindler v Newsweek,
Inc., 277 A.D.2d 159, 159-160 [1st Dept 2000]).
assuming there is an ambiguity in the CM Agreement, nothing
in the LLC Agreement indicated that the provisions in the CM
Agreement were to be fully incorporated into the LLC
Agreement. To the extent appellants rely on the
contracts' negotiation history, parol evidence is
unnecessary where, as here, the contract terms are
unambiguous (see W.W.W. Assoc. v Giancontieri, 77
N.Y.2d 157, 163 ; Salamone v Gorman, 106 A.3d
354, 374-375 [Del 2014]). We have reviewed the arguments
related to other subparts of the breach of contract claims
and find them unavailing.
failed to state a claim for anticipatory repudiation of
§§ 3.1(b) and (c) of the LLC Agreement, which
committed FC䩆Ʝ Modular, LLC (FC䩆Ʝ) (now known as
plaintiffs) to enter into contracts for modular work on B3
and B4 towers, as appellants failed to plead any act of
repudiation on the part of FC䩆Ʝ. On appeal, appellants
argue only that third-party defendants should be held liable
under an alter ego theory. As discussed, we reject this
theory of liability.
also failed to state claims for fraudulent and negligent
misrepresentation. Even assuming appellants have pleaded the
claims with sufficient particularity, the representations in
the Opportunity Brief were opinion and puffery, and therefore
insufficient to support a fraud claim (Sheth v New York
Life Ins. Co., 273 A.D.2d 72, 74 [1st Dept 2000];
Airborne Health, Inc. v Squid Soap, LP, 2010 WL
2836391, *8, 2010 Del Ch LEXIS 150, *19-20 [Del Ch, July 20,
2010, No. 4410-VCL]). Further, the misrepresentations were
not made to Skanska Modular, but to nonparty Skanska USA.
Moreover, appellants failed to allege a "special
relationship" between third-party defendant Forest City
Ratner Companies, LLC (Forest City) and Skanska USA; rather,
the allegations show that the parties were engaged in an
arms-length transaction at the time of the transmission of
the Opportunity Brief (see Basis Pac-Rim Opportunity Fund
[Master] v TCW Asset Mgt. Co., 124 A.D.3d 538, 539 [1st
Dept 2015]; Fortis Advisors LLC v Dialog Semiconductor
PLC, 2015 WL 401371, *9, 2015 Del Ch LEXIS 22, *28-29
[Del Ch, Jan. 30, 2015, No. 9522-CB]). Appellants do not have
a claim for promissory estoppel, as the LLC Agreement already
governs the obligations underlying the claim (see Goldman
v Metropolitan Life Ins. Co., 5 N.Y.3d 561, 572 ;
Siga Technologies, Inc. v PharmAthene, Inc., 67 A.3d
330, 348 [Del 2013]). To the extent appellants argue that
Forest City could still be held liable for the alleged
promises, as it was not a party to the LLC Agreement, the
representations in the Opportunity Brief were made to Skanska
USA, not Skanska Modular.
have not demonstrated entitlement to contractual
indemnification under § 16.1 of the LLC Agreement, which
requires FCRC Modular to indemnify Skanska Modular for losses
arising from "any breach of, or any failure to perform
or comply with, any of such Member's representations,
warranties and covenants contained in this Agreement."
Appellants failed to allege breach of any provision governing
FCRC Modular's obligation to negotiate a collective
bargaining agreement. Nothing in the LLC Agreement required
FCRC Modular to negotiate a term to afford FC䩆Ʝ the
ability to furlough employees.
failed to state a claim for libel. The challenged statement
in a press release regarding defendant/third-party plaintiff
Kennedy is protected by section 74 of the Civil Rights Law.
As the press release merely "restate[d] the allegations
of the complaint" (McRedmond v Sutton Place Rest.
& Bar, Inc., 48 A.D.3d 258, 259 [1st Dept 2008]),
the basis for which Kennedy does not dispute, the reporting
is "fair and true" (id. [internal
quotations marks omitted]; Lacher v Engel, 33 A.D.3d
10, 17 [1st Dept 2006]). Kennedy's allegations of malice
are conclusory and insufficient to invoke the exception in
Williams v Williams (23 N.Y.2d 592');">23 N.Y.2d 592 ).
the foregoing, the motion court properly denied, as moot,
appellants' motion for orders of contempt ...