HALPERN DEVELOPMENT VENTURE INC v. BOARD OF TRUSTEES OF VILLAGE OF NORTH TARRYTOWN

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

HALPERN DEVELOPMENT VENTURE, INC., Respondent, v. BOARD OF TRUSTEES OF the VILLAGE OF NORTH TARRYTOWN, et al., Appellants.

Decided: February 23, 1998

Before BRACKEN, J.P., and SANTUCCI, ALTMAN and McGINITY, JJ. Thurm & Heller, L.L.P., New York City (Michael A. Miranda and Jordan Sklar, of counsel), for appellants. Pirro, Collier, Cohen & Halpern, L.L.P., White Plains (Steven H. Gaines, of counsel), for respondent.

In an action to recover damages for breach of an agreement, the defendants appeal from an order of the Supreme Court, Westchester County (Fredman, J.), dated January 17, 1997, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

In 1988 the plaintiff, Halpern Development Venture, Inc., and the defendant Village of North Tarrytown (hereinafter the Village), entered into an agreement which called for the plaintiff to study and propose a revitalization project for the Village's downtown area (hereinafter the 1988 agreement), further details of which are set forth in an earlier decision and order of this court (see, Halpern Dev. Venture v. Board of Trustees, 222 A.D.2d 652, 635 N.Y.S.2d 679).   A final redevelopment agreement was never adopted by the Village and the plaintiff sought to recover its costs for the study, alleging, inter alia, that the Board of Trustees of the Village acted in bad faith and in violation of the 1988 agreement in rejecting the redevelopment proposals.   We disagree.

The 1988 agreement specifically contemplated that the plaintiff was to bear the financial risk and burden of its proposal and granted the Village the opportunity to withdraw by not approving the final redevelopment agreement.   Under the circumstances and in light of all the evidence presented and contrary to the plaintiff's contentions, we find, as a matter of law, that the failure to approve the final redevelopment agreement was not a breach of the implied covenant of good faith and fair dealing in the 1988 agreement, but was a discretionary act within the parties' contemplation at the time the 1988 agreement was executed (see, Kirke La Shelle Co. v. Armstrong Co., 263 N.Y. 79, 188 N.E. 163;  Goodstein Constr. Corp. v. City of New York, 111 A.D.2d 49, 489 N.Y.S.2d 175, affd. 67 N.Y.2d 990, 502 N.Y.S.2d 994, 494 N.E.2d 99;  Rochester Park v. City of Rochester, 38 Misc.2d 714, 238 N.Y.S.2d 822, affd. 19 A.D.2d 776, 241 N.Y.S.2d 763).

MEMORANDUM BY THE COURT.

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