Roller v. Buchheit

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs’ motion for partial summary judgment on the second cause of action seeking a declaration that plaintiffs had performed their obligations pursuant to a memorandum of understanding dated June 7, 1996. Plaintiffs and defendant are unit holders in limited liability corporations known as W.R.S.B. Development Company, L. L. C. (WRSB) and Quaker Crossing, L. L. C. After WRSB and Quaker Crossing borrowed monies from Key Bank, the parties executed the memorandum of understanding requiring plaintiffs to “secure either construction and/or permanent financing necessary to replace any and all bridge financing”. Even assuming, arguendo, that plaintiffs met their initial burden, we conclude that defendant raised an issue of fact whether the loan made by Key Bank to WRSB, which was used by WRSB to pay off a prior mortgage and did not require WRSB to construct any building or improvements (see, Finest Invs. v Security Trust Co., 96 AD2d 227, 229, affd 61 NY2d 897; Pawling Sav. Bank v Hunt Props., 225 AD2d 678, 679, lv dismissed 89 NY2d 917, 91 NY2d 866), was bridge financing or construction financing, and thus whether plaintiffs failed to perform their obligations under the memorandum of understanding (see generally, Zuckerman v City of New York,

49 NY2d 557, 562). In light of our determination, we do not consider the other issues raised by defendant. (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Summary Judgment.) Present — Green, J. P., Hayes, Hurlbutt and Law-ton, JJ.