305 East 24th Owners Corp. v. Parman Co. , 505 N.Y.S.2d 999 ( 1986 )

— Order, Supreme Court, New York County (Harold Tompkins, J.), entered November 6, 1985, denying plaintiffs’ motion for summary judgment and to dismiss the counterclaims in the answer, modified, on the law, to dismiss the counterclaims, and otherwise affirmed, without costs or disbursements.

The action was brought, inter alia, for breach of contract and specific performance to direct defendants to transfer to 305 East 24th Owners Corp. the sum of $578,650, as the reserve fund required by Administrative Code of the City of New York § YYYY51-3.0, known as Local Law No. 70 of City of New York, adopted October 14, 1982, effective February 1, 1983. Local Law No. 70 directs the establishment of a reserve fund within 30 days after closing of a conversion from rental apartments to cooperative ownership, in an amount equal to 3% of the total offering price to tenants in occupancy. It provides that such fund is "to be used exclusively for making capital repairs, replacements and improvements necessary for the health and safety of the residents of such buildings” and, further, that such fund "shall be exclusive of any working capital fund and shall not be subject to reduction for closing apportionments.” (Administrative Code § YYYY51-3.0 [a].) Local Law No. 70 was upheld by the Court of Appeals in Council for Owner Occupied Hous. v Koch (61 NY2d 942) approximately seven months prior to the closing in this case.

The offering plan to convert the premises at 305 East 24th Street, New York, New York, was accepted for filing by the Attorney-General on January 25, 1983. The original offering plan established a reserve fund of $772,000 (3% of the original total offering price to tenants in occupancy) and a working capital fund of $25,000, the latter to be used for ordinary expenses, maintenance or repairs. Subsequently, there were negotiations between the sponsor and the tenants, as a result of which the price per share was reduced to $56.37, which, as applied to the 342,174 shares allocated to the apartments to be sold, resulted in a proportionate reduction in the reserve fund to $578,650. The agreement, reflected in a letter dated August 12, 1983 from the tenant’s attorney, Irving Sonnenschein, to the attorney representing the sponsor, provided that, at closing, a reserve fund of $600,000 would be paid, plus $1,000 per room for each apartment, as and when sold. The sponsor contends that the parties agreed to establish reserve and working capital funds in the total aggregate of $650,000, in addition to imposing a "flip-tax” of $4 per share to be paid by a tenant on a sale in the first year after closing, which amount was to be reduced in later years. This was contained in the first amendment to the offering plan, dated March 28, 1984, which was accepted for filing by the Attorney-General in April of that year.

The first amendment set forth the substance of what had been agreed upon in the negotiations, including, inter alia, a reduced price to tenant purchasers ($56.37), the transfer fee or flip-tax, and a reduction in the required down payment from 10% to $1,000. While the first amendment did not expressly refer to the reserve fund, paragraph 4, entitled "Working Capital Fund”, amended the original offering plan as follows: "The Apartment corporation’s Working Capital Fund is hereby established at $650,000. It will be acquired by the Apartment Corporation and used and applied in the same manner as set forth in the Plan. i.e. for working capital, repairs and other appropriate corporate purposes. The said amount shall not be reduced as a result of closing adjustments in favor of the Seller. The Apartment Corporation shall, however, bear such adjustments, in an amount not to exceed One-Hundred Fifty Thousand Dollars ($150,000). In the event that the Apartment Corporation is obligated with respect to closing adjustments (not to exceed $150,000), such obligation will be evidenced by a noninterest bearing note of the Corporation in favor of the Seller or its designee which will be due and payable one year from the Closing Date.”

The closing was held on October 25, 1984, when title was transferred to the sponsor and individual closings were held regarding 323 tenants. At the closing, $650,000 was transferred, purportedly in satisfaction of the reserve and working capital funds. It was at the closing that, for the first time, the tenants contended that the sponsor had not satisfied Local Law No. 70 by establishing a reserve fund. Nevertheless, the closing continued and was not adjourned because of this claimed deficiency.

This action was commenced less than three months later, the tenants claiming that the provision in the first amendment for a $650,000 working capital fund did not pertain to the separate reserve fund required by Local Law No. 70. The answer included an affirmative defense that the parties had intended the aggregate sum of $650,000 to include both the Local Law No. 70 reserve fund and the working capital fund; this was understood and agreed upon by both parties in their negotiations and was reflected in a letter by Sonnenschein prior to the closing; and there was an inadvertent error in drafting the first amendment in failing to state that the total amount was for both funds, especially since the parties had never discussed increasing the working capital fund from $25,000 to $650,000, allegedly an exorbitant, unusual and unnecessary increase. It appears that the first amendment was prepared almost entirely by Sonnenschein, who was not present at the closing when the claim was first advanced that the document did not accurately reflect the intention and agreement of the parties.

After joinder of issue, plaintiffs moved for summary judgment, seeking relief directing the sponsor to establish a reserve fund of $578,650, on the basis that the first amendment increased the working capital fund but not the reserve fund, which allegedly was never created. They claimed that the first amendment was clear and unambiguous on its face and, therefore, parol evidence was inadmissible to vary the terms of the agreement.

Defendants opposed the motion, contending that the $650,-000 was a combined figure, to represent both the reserve and working capital funds, which amount is concededly sufficient for that purpose under the 3% requirement of Local Law No. 70. As support for their position, defendants first referred to a footnote in the plan which described the projected annual interest to be earned on both funds ($40,000) and then to an eighth amendment to the offering plan, filed subsequent to the closing, which specifically stated that the first amendment had provided for the retention by the Apartment Corporation of a reserve fund in the amount of $650,000. Thus, defendants argued that the first amendment’s sole reference to a working capital fund was an inadvertent error, inconsistent with the express intention of the parties, and as agreed to by the tenants’ counsel, Sonnenschein, in his preclosing letter to the sponsor’s attorney. Therefore, equitable estoppel should apply to prevent an unwarranted windfall to the tenants. It was claimed that since all of the parties knew that $650,000 had been segregated for both funds, the tenants, through counsel, had proceeded in bad faith by interjecting the issue for the first time at closing to coerce the sponsors to agree to a further price reduction.

Special Term denied summary judgment, concluding that there were material questions of fact relating to the nature and purpose of the establishment of the $650,000 fund(s) which could not be determined upon the conflicting proof presented. It held that further exploration of the facts as to the negotiations by the parties and their intent was necessary.

We agree that, on this record, there are factual issues which may not be summarily resolved. A trial is necessary, especially taking into account the limited function of the court on a motion for summary judgment as issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). The drastic relief of summary judgment should not be granted where there is any doubt as to the existence of a triable issue (Moskowitz v Garlock, 23 AD2d 943, 944), or where the issue is arguable (Barrett v Jacobs, 255 NY 520, 522).

We find the record replete with factual issues relating to the negotiations between the parties, their intent in segregating $650,000, and whether that amount was to represent the working capital fund only or whether it also included the reserve fund. Concededly, $650,000 was more than sufficient to satisfy both funds, and it is claimed that the parties and their counsel knew the sum was to cover both. In substance, Sonnenschein stated this in his letter to the sponsor’s attorney in August 1983, seven months before the first amendment to the offering pían. That letter, which expressly refers to a "reserve fund of $600,000 to be paid at closing plus $1000 per room for each apartment as and when sold”, is hardly "equivocal”, as is suggested by our dissenting colleague.

While the first amendment does not expressly refer to a reserve fund and, on its face, purports to segregate only the working capital fund, it is undisputed that $650,000 is greatly in excess of what would be normally required for a working capital fund, which is for ordinary repairs and corporate uses, and is entirely different from a reserve fund, which covers the cost of capital replacements and other similar major expenses. In considering the issue, we must be mindful of the practical aspects of these cooperative conversions and the unrefuted claim that a working capital fund of $650,000 would be unnecessary, extraordinary and "simply unheard of.”

Further reflecting the claim that the parties intended the $650,000 to constitute both funds is the inclusion of a footnote in the first amendment, projecting anticipated future annual income of $40,000 as annual interest from the working capital and reserve funds to be retained by the Apartment Corporation. In addition, the eighth amendment, although subsequent to the closing, refers to the first amendment as having provided for the retention of $650,000 as a reserve and working capital fund.

These are factors to be considered at trial in determining whether the first amendment accurately reflects the true agreement of the parties or whether there was an inadvertent error in failing to refer to the $650,000 as constituting both funds. The issue cannot be determined on this conflicting record.

Our dissenting colleague concludes that there is no ambiguity in the first amendment and that parol evidence may not' be considered to vary or alter its clear and unambiguous terms. In our view, this ignores the unrefuted claim by the sponsors that the first amendment was "composed almost entirely by Sonnenschein himself’, suggesting that there was some impropriety in the reference to the $650,000 as representing only the working capital fund, when it is contended the parties had agreed otherwise.

This is especially so where, as here, the motion for summary judgment has abruptly halted defendants’ discovery and the opportunity to depose Sonnenschein. Moreover, and in further support of the inadequacy of discovery, is the fact that, although Sonnenschein did submit a reply affidavit, he did not refute the charge that he prepared an amendment which did not accurately reflect the parties’ understanding.

We recognize that, ordinarily, the interpretation of a contract poses a question of law for the court, but where the agreement is ambiguous in light of the history of the negotiations, especially where it flies in the face of usual business customs, or where the language is equivocal and its interpretation depends upon the context in which the words were employed in relation to the subject matter and the surrounding circumstances, the issue is a mixed question of law and fact. This requires a trial, at which extrinsic evidence may be considered. (Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247, 254; Lacks v Fidelity & Cas. Co., 306 NY 357, 364; Steckler v Steckler, 78 AD2d 818.) The dissent’s position that the offering plan is unambiguous and, therefore, its interpretation presents solely a question of law, overlooks the absence of any explanation in the record as to the reason for the extraordinary, 25-fold increase in the working capital fund from $25,000 to $650,000.

Under the facts of this case, application of the parol evidence rule does not, as claimed by plaintiffs, require that summary judgment The granted. While parol evidence is not admissible to contradict or vary a written agreement, it does not preclude introduction of proof to negate the existence of a binding contract or to demonstrate that there was fraud or mistake (see generally, 22 NY Jur, Evidence, § 631; 21 NY Jur 2d, Contracts, § 121). As applied here, it is alleged that the omission in the first amendment of the understanding that the $650,000 represented both the reserve and the working capital funds was a mutual mistake, inconsistent with what had actually been agreed upon. Clearly, this relates to a substantial matter.

Moreover, the third affirmative defense, based upon mutual mistake, and the fourth affirmative defense, alleging estoppel, essentially seek equitable relief in the nature of reformation. The third defense alleges that the parties had agreed to the sum of $650,000 for both the reserve and working capital funds and that there was a mutual mistake in the first amendment since "it was never contemplated, intended or agreed between the parties that the Working Capital Fund be increased from the $25,000 figure set forth in the original Plan to the sum of $650,000.” It is a familiar principle of law that a court will exercise its equity jurisdiction to correct an error where, through mistake, an agreement does not conform to what the parties had intended or where there was fraud or inequitable conduct and mistake by one party. (6 NY Jur, Cancellation and Reformation of Instruments, § 40, at 585: "Undoubtedly, where the parties to a contract have arrived at an agreement and where a mistake is made in reducing the agreement to writing, so that the terms of the written paper are at variance with the terms of the agreement, the court of equity will reform the writing the express the true agreement between the parties.”)

However, we disagree with so much of the determination at Special Term which denied plaintiffs’ motion for summary judgment dismissing the counterclaims, the first for abuse of process and the second and third based upon corporate waste and mismanagement. The tort of abuse of process has three elements: (1) regularly issued process, either civil or criminal, (2) an intent to harm without excuse or justification, and (3) the use of process in a perverted manner to obtain a collateral object (Curiano v Suozzi, 63 NY2d 113, 116; Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397, 403; Dean v Kochendorfer, 237 NY 384, 390). These and other cases have held that the essence of the tort is the improper use of process after it is issued, not the malicious issuance of process. In addition, to sustain a cause of action for abuse of process, there must be injury to or interference with one’s person or property under color of process (Williams v Williams, 23 NY2d 592, 596). Inasmuch as here, the only process issued was a summons and complaint, necessary to commence the action and obtain jurisdiction, "there was no unlawful interference with [defendants’] persons or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused [citations omitted]” (Curiano v Suozzi, supra, at p 116). Thus, the first counterclaim is legally insufficient.

Similarly deficient are the second and third counterclaims for corporate waste and mismanagement. While it is alleged that the action amounts to a waste of corporate assets, since the suit seeks to increase the reserve fund, which can only benefit the Apartment Corporation, we fail to perceive in what manner the corporation will be prejudiced should plaintiffs ultimately be successful. Moreover, defendants, consisting of the sponsor, the nominee and assignee of the sponsor’s unsold shares, do not appear to be the proper party shareholders, authorized to bring a derivative claim based upon corporate mismanagement and waste. In addition, the action was authorized by an executive committee, duly appointed by the board of directors, which, on January 4, 1985, had voted to ratify all interim actions and resolutions of the executive committee. Concur — Sullivan, Carro, Milonas and Kassal, JJ.