Reset A A Font size: Print

James T. TOWNE Jr., Individually and on Behalf of Towneking Realty, LLC, Appellant–Respondent, v. John P. KINGSLEY, Respondent–Appellant.

Decided: October 23, 2014

Before: PETERS, P.J., STEIN, GARRY, LYNCH and DEVINE, JJ. DuCharme, Clark & Sovern, LLP, Clifton Park (John B. DuCharme of counsel), for appellant-respondent. John P. Kingsley, Catskill, respondent-appellant pro se.

Cross appeals from an order of the Supreme Court (Platkin, J.), entered July 23, 2013 in Greene County, which, among other things, partially denied plaintiff's motion for summary judgment.

The parties, who formerly practiced law together as Kingsley and Towne, P.C., formed Towneking Realty, LLC in 1995 to purchase the building in which their law office was located in the Town of Catskill, Greene County. In 1999, the parties dissolved Kingsley and Towne, P.C., and each opened separate law practices. Thereafter, defendant remained in possession of the Catskill property, operated his law practice there, collected rents from tenants and covered the mortgage payments, maintenance and repair costs, and other expenses associated with the property. Defendant asserts that these actions were taken pursuant to an oral agreement between the parties by which he became the sole owner of the property, effective in January 2000, and assumed all related expenses. Plaintiff maintains that although such an agreement was discussed, it was never finalized.

In 2007, defendant executed and recorded a deed transferring the Catskill property from Towneking to himself. In 2012, plaintiff objected in writing to the property transfer and demanded that defendant transfer the property back to Towneking and provide an accounting. Upon defendant's failure to comply, plaintiff commenced this action alleging, among other things, breach of fiduciary duty, conversion and fraud, and seeking a constructive trust, an injunction and an accounting. Defendant's answer asserted affirmative defenses and a counterclaim. Plaintiff moved for summary judgment in his favor on all claims, dismissal of the affirmative defenses and counterclaim, and appointment of a receiver. Defendant opposed and cross-moved for an order compelling certain disclosure. Supreme Court denied the parties' motions, with the exception of granting plaintiff's request to dismiss certain affirmative defenses. Plaintiff appeals.1

Plaintiff contends that Supreme Court should have granted his motion for summary judgment in his favor on all of his causes of action, arguing that his submissions establish that the parties did not reach an agreement to convey the property to defendant and that defendant thus engaged in improper self-dealing by transferring the property to himself. We disagree. An enforceable contract requires “an objective meeting of the minds” and “a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms” (Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589 [1999]; accord Mills v. Chauvin, 103 AD3d 1041, 1047 [2013] ). The parties' correspondence between 2003 and 2005—which plaintiff submitted, along with other documents, in support of his motion—does not, as he claims, conclusively establish that no agreement was ever reached between the parties. Instead, while the letters can be read to support such a contention, they can also be read to support defendant's claim that the parties did reach such an agreement, but that plaintiff then refused to comply with it because of other unresolved issues related to the dissolution of their law firm. Other undisputed aspects of the parties' conduct also pose issues that may be developed at trial. Defendant's submissions reveal that he maintained exclusive possession of the property and covered all related costs and expenses, while plaintiff did not visit the property, inquire about income, contribute to mortgage payments or repair costs or otherwise attempt to assert an ownership interest between 2000 and 2012. Defendant also submitted a 2001 letter written for tax purposes by the parties' accountant, stating that defendant had become the property's sole owner as of January 2000. Although this hearsay evidence would be inadmissible at trial, it was not error to consider the letter in opposition to plaintiff's summary judgment motion here, as other competent evidence also supported defendant's contention (see Saint James' Episcopal Church v. F.O.C.U.S. Found., 47 AD3d 1058, 1059–1060 [2008]; Bond v. Giebel, 14 AD3d 849, 850 [2005] ).

Taken together, we find support for Supreme Court's determination that the evidence presents material issues of fact as to whether the parties agreed to convey the property from Towneking to defendant and, if so, what the terms of their agreement were regarding, among other things, the continued operation of Towneking—which was never formally dissolved—after the conveyance. All of plaintiff's causes of action turn, at least in part, on resolution of these factual questions. Accordingly, the motion for summary judgment was properly denied.

We further reject plaintiff's contention that Supreme Court should have granted his motion for dismissal of all of defendant's affirmative defenses rather than only partially granting this request. Plaintiff bore the burden of establishing that these defenses were without merit as a matter of law (see Cunningham v. Anderson, 85 AD3d 1370, 1372 [2011], lv dismissed and denied 17 NY3d 948 [2011] ). Eight of the challenged defenses—that is, the statute of limitations, laches, waiver, accord and satisfaction, plaintiff's own culpability, lack of cognizable damages, failure to mitigate and lack of standing to assert the derivative claims—turn upon the resolution of factual issues related to the parties' alleged oral agreement and cannot now be resolved as a matter of law. As for the defense of failure to state a claim, this Court's rule is well established that “the pleaded defense of failure to state a cause of action is harmless surplusage and a motion to strike it should be denied as unnecessary” (Pump v. Anchor Motor Frgt., 138 A.D.2d 849, 851 [1988]; see Dubois v. Vanderwalker, 245 A.D.2d 758, 760 [1997]; see also Butler v. Catinella, 58 AD3d 145, 150 [2008] ). Similarly, as defendant's counterclaim seeking a declaratory judgment regarding the parties' rights with regard to the property depends on resolution of the previously discussed issues, Supreme Court did not err in refusing dismissal. Nor was there error in the denial of plaintiff's request to appoint a receiver for the property, as he did not make the requisite “clear evidentiary showing” of any danger that the property will be injured or destroyed (Pixel Intl. Network v. State of New York, 228 A.D.2d 899, 902 [1996]; see CPLR 6401[a]; Vardaris Tech. Inc. v. Paleros Inc., 49 AD3d 631, 632 [2008] ).

ORDERED that the order is affirmed, without costs.


1.  Defendant cross-appealed, but abandoned his claims by failing to address them in his brief (see Mills v. Chauvin, 103 AD3d 1041, 1044 n. 2 [2013] ).



Copied to clipboard