CONDOR CAPITAL CORP v. XYZ 10 (2020)

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on June 8, 2018, which, inter alia, granted the motion of defendant CALS Investors, LLC (defendant) to dismiss, pursuant to CPLR 3211(a)(1) and (7), so much of the first cause of action as alleged that defendant had breached the parties' contract by failing to properly calculate the MOIC Target, unanimously affirmed, with costs.

The parties' contract defines MOIC Target as 115% of the Target.  In turn, Target is defined as the Closing Cash Purchase Price;  the parties agree that the Closing Cash Purchase Price was $64,464,497.

Plaintiff contends that the MOIC Target should be 115% of $20,389,153.90 because that is the amount defendant actually invested, and MOIC means multiple of invested capital.  However, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Ellington v. EMI Music, Inc., 24 N.Y.3d 239, 245, 997 N.Y.S.2d 339, 21 N.E.3d 1000 [2014] [internal quotation marks omitted]).  The definition of “MOIC Target” is unambiguous.  Contrary to plaintiff's contention, enforcing the definition as written does not “produce a result that is absurd, commercially unreasonable or contrary to the reasonable expectations of the parties” (Matter of Lipper Holdings v. Trident Holdings, 1 A.D.3d 170, 171, 766 N.Y.S.2d 561 [1st Dept. 2003] [internal citations omitted]).

The IAS court providently exercised its discretion by not converting defendant's motion into a summary judgment motion (see Lerner v. Prince, 119 A.D.3d 122, 131, 987 N.Y.S.2d 19 [1st Dept. 2014]).  “Where the terms of a contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract” (Ellington, 24 N.Y.3d at 244, 997 N.Y.S.2d 339, 21 N.E.3d 1000).  Discovery is unnecessary because “[a]ny such discovery would simply be an opportunity for plaintiff to uncover parol evidence to attempt to create an ambiguity in an otherwise clear and unambiguous agreement” (RM Realty Holdings Corp. v. Moore, 64 A.D.3d 434, 437, 884 N.Y.S.2d 344 [1st Dept. 2009] [emphasis omitted]).