In a July 25, 2011, decision by Justice Whelan, the court granted defendant-seller’s motion for summary judgment dismissing plaintiff-buyer’s fraud action and finding for defendant on its counterclaim for breach of contract. Defendant, owner of a large tract of subdivided real estate, sold plaintiff a 20-acre lot on which plaintiff planned to construct a concrete plant. In connection with the sale, the parties entered into a contract of sale, followed by certain infrastructure contracts involving the removal of excavation material to comply with certain grading and draining regulations, as well as a letter-agreement that 1) reduced the purchase price of the land to reflect any decreases in acreage and credited plaintiff for its affiliate-contractor’s work under the infrastructure contracts; and 2) required plaintiff to pay defendant for material removed from the site under the infrastructure contracts in excess of the grading indicated on the subdivision maps. The letter-agreement further provided that all additional excavation material “belong[ed] to [plaintiff] for disposal as it sees fit.” Unbeknownst to plaintiff, defendant previously had removed approximately 66,000 cubic yards of material from the site. Plaintiff brought suit claiming that had it known about the removal of additional material – which, allegedly could have been sold to a third party for $9 per cubic foot – it would not have entered into the agreements. Defendant counterclaimed in connection with plaintiff’s failure to complete its payment to defendant for removal of material under the infrastructure agreements. The court granted defendant’s motion dismissing plaintiff’s action, finding that there was no evidence in the record, including in the language of the agreements, that the right to remove excess material was part of the contract negotiations or otherwise bargained for by plaintiff. The court also found that plaintiff failed to present its material-breach defense to defendant’s counterclaim in its opposition papers, and granted defendant summary judgment on its claim for breach of contract. 

Circle Assoc., LP v Starlight Props., Inc., Sup Ct, Suffolk County, July 25, 2011, Whelan, J., Index No. 41838/2008