FIRST NEW YORK REALTY CO INC v. RMC ENTERPRISES LLC

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Supreme Court, Appellate Division, First Department, New York.

FIRST NEW YORK REALTY CO., INC., et al., Plaintiffs-Appellants, v. RMC ENTERPRISES, LLC, et al., Defendants-Appellants.

Decided: May 26, 1998

Before MILONAS, J.P., and NARDELLI, MAZZARELLI and ANDRIAS, JJ. Samuel A. Abady, for Plaintiffs-Appellants. Peter S. Cane, for Defendants-Appellants.

Order, Supreme Court, New York County (Ira Gammerman, J.), entered January 29, 1998, which granted defendants' motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

 Documentary evidence, namely, the letter of understanding, conclusively shows that plaintiffs' alleged reliance upon any promise by defendants to pay for their services was unjustified (CPLR 3211[a][1];  see, Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 318, 515 N.Y.S.2d 1;  Linnane v. Lanzellotto, 202 A.D.2d 400, 608 N.Y.S.2d 524).   The parties expressly agreed that defendants' obligation to assign a 10% interest in the building was conditioned upon consummation of the “transactions contemplated hereunder ․ to [defendants'] reasonable satisfaction”.   Thus, it is clear that plaintiffs, sophisticated real estate developers, assumed the risk of defendants' dissatisfaction with their services, precluding recovery on the theory of fraud (cf., Trick v. County of Westchester, 216 A.D.2d 555, 628 N.Y.S.2d 759).   Nor, under the facts alleged, can there be a recovery under plaintiffs' alternative theory of quantum meruit, since, as a matter of law, the letter of understanding, contrary to plaintiffs' characterization, is an enforceable contract that governs their right, if any, to payment (see, Bauman Assocs. v. H & M Intl. Transp., 171 A.D.2d 479, 483-484, 567 N.Y.S.2d 404).

MEMORANDUM DECISION.