The following papers were considered in determining this motion to dismiss a counterclaim.Papers Considered NumberedNotice of Motion to Dismiss, Dated May 14, 2018, by Petitioners, With Affidavit, Dated May 14, 2018, of Wook Hwang, Esq., Attaching Exhibits A through J 1, 2Memorandum of Law, Dated May 14, 2018, in Support of Motion to Dismiss Counterclaim 3Affirmation, Dated June 5, 2018, of Aaron B. Lauchheimer, Esq., in Opposition to Motion to Dismiss, Attaching Exhibits A through C 4Counterclaimants’ Memorandum of Law in Opposition, Dated June 5, 2018 5Reply Affidavit, Dated July 2, 2018, of Wook Hwang, Esq., in Further Support, Attaching Exhibit A 6Petitioners’ Reply Memorandum of Law, Dated July 2, 2018, in Further Support of Motion to Dismiss 7DECISION and ORDER At the call of the calendar on July 25, 2018, the court granted the motion of petitioners to dismiss the counterclaim interposed by certain respondents, who are known in this matter as the Marx Group. The counterclaim sought damages for petitioners’ alleged breach of the parties’ Settlement Agreement, dated September 30, 2011,1 and, in particular, of a provision of that agreement requiring the Marx Group to make a “Fourth Payment” of $4 million to the executors of the estate of decedent Jack Schleifer no later than March 28, 2015. The court dismissed the counterclaim as: (a) barred by the documentary evidence consisting of the parties’ 2011 settlement agreement itself, which conclusively refutes as a matter of law the basis for the relief sought in the counterclaim, and consequently, (b) failing to state a claim under the circumstances presented (CPLR 3211[a][1] & [7]; see Allen v. Gordon, 86 AD2d 514, 515 [1st Dept 1982], aff’d, 56 NY2d 780 [1982]; see also Hyman v. Schwartz, 127 AD3d 1281 [3d Dept 2015]; Etzion v. Etzion, 84 AD3d 1015 [2d Dept 2011]; Piel Bros. v. Inter-City Beverage Distr., Inc., 256 App Div 927 [2d Dept 1939]). The counterclaim for breach of the settlement agreement fell short because the purportedly breached obligations appear nowhere in that agreement. A basic set of obligations is set forth in that agreement for each side, which depend on whether the Marx Group made the $4 million payment. In default of this “Fourth Payment” being made, the agreement provides that the “Marx Group agrees to fully relinquish any and all rights” to certain real property in Queens, known as the “Douglaston Property.”The agreement also provides that,“[i]n the event that the Fourth Payment, together with all interest accrued thereon, is paid to the Estate in full on or before March 28, 2015, the Estate agrees to reconvey the Douglaston Property to David Marx (or an entity designated by him), without further consideration….[and] [t]he Schleifer Group agrees to provide to the Marx Group a quitclaim deed to the Douglaston Property in the form of Exhibit “D” attached hereto, with such fully executed deed to be held in escrow by Richard L. Yellen and Associates, LLP, and such deed shall be promptly released to the Marx Group in the event the Fourth Payment is paid in full on or prior to March 28, 2015.”The counterclaim alleges that this language required petitioners to attend a closing that the Marx Group had scheduled at which the Marx Group would obtain a $6 million mortgage loan on the Douglaston Property in order to make the Fourth Payment, and that petitioners were also required to provide a quitclaim deed in exchange of the Fourth Payment “simultaneously” at the closing. A letter dated March 24, 2015 from the lawyer for the Marx Group to petitioners’ counsel required decedent’s estate to provide a draft of the quitclaim deed in advance of the closing together with a seller affidavit with information required by the title company. A subsequent letter from the Marx Group’s counsel, dated March 26, 2015, further required decedent’s estate to complete in excess of 20 pages of “ACRIS” forms. No such requirements or duties arise from the language of the parties’ agreement, however (see MHR Capital Partners LP v. Presstek, Inc., 12 NY3d 640, 643 [2009]; MCAP Robeson Apts. LP v. MuniMae TE Bond Subsidiary, LLC, 136 AD3d 602 [1st Dept 2016]; Sterling Fifth Assoc. v. Carpentille Corp., 9 AD3d 261 [1st Dept 2004]). To the contrary, the language requires that the Fourth Payment be made first and that only thereafter, the quitclaim deed be promptly provided (see Oppenheimer & Co. v. Oppenheim, 86 NY2d 685, 691 [1995]).While it is true that the parties executed the agreement without its exhibits, including the quitclaim deed — identified as Exhibit D to their agreement — and therefore, the deed was never placed into escrow, that failure was not material to the obligations and the timing of their performance as established in the agreement (cf. Nezry v. Haven Avenue Owner LLC, 28 Misc 3d 1226(A), 2010 NY Slip Op 51506(U), at *9 [Sup Ct, NY County 2010]). Nothing in the agreement indicates that the inclusion or non-inclusion of the exhibits could affect the terms of the agreement.2The court also notes in this regard that the parties carefully crafted their settlement agreement (which was a settlement of the Marx Group’s pre-existing debt with decedent), each with the aid of counsel. Furthermore, the Marx Group is not arguing here that there is some ambiguity in the parties’ agreement requiring clarification (cf. Cooling Tower Specialties, Inc. v. Yaro Enterprises, Inc., 67 AD3d 1445 [4th Dept 2009]); nor does the court independently perceive any such ambiguity. In any event, it is not for the court to impose additional contractual obligations not bargained for by the parties under the guise of construing the contract (see Pevensey Press, LTD. v. Prentice-Hall, Inc., 161 AD2d 500, 501 [1st Dept 1990]). That, however, is what the Marx Group asks the court to do in its opposition to the motion to dismiss.It is clear from those allegations that the Marx Group would read into the agreement a duty on the part of decedent’s estate to assist the Marx Group to obtain financing — with the Douglaston Property as collateral — to meet the Marx Group’s obligation to make the Fourth Payment. No such duty on the part of petitioners is mandated, or even suggested, in the agreement itself. While the petitioners could have voluntarily assisted the Marx Group in its financing efforts, nothing in their agreement obligated them to do so.3Finally, the Marx Group’s counterclaim is not saved by the “Best Efforts” clause in the parties’ agreement. Such a clause must include an objective standard against which a contracting party’s actions are to be judged, and the clause at issue contains no such standard (Digital Broadcast Corp. v. Ladenburg, Thalmann & Co., 63 AD3d 647 [1st Dept 2009]; Timberline Dev v. Kronman, 263 AD2d 175, 178 [1st Dept 2000]; Bernstein v. Felske, 143 AD2d 863 [2d Dept 1988]). Here, the generally worded “Best Efforts” clause alone cannot convert a duty imposed on one side by the contract — to make a payment — to be the obligation of the other side — to assist in financing that payment so that it can be made.Accordingly, petitioners’ motion to dismiss is granted, and the counterclaim of the Marx Group is dismissed.This decision, together with the transcript of the July 25, 2018 proceedings, constitutes the order of the court.Dated: November 7, 2018
