By notice of motion dated October 29, 2007, plaintiffs Deborah Philipson and Benjamin Landa seek an order granting summary judgment in their favor pursuant to CPLR § 3212.^[FN1] By [*2]notice of cross motion dated January 9, 2008, defendants seek an order granting summary judgment in their favor pursuant to CPLR § 3212 dismissing plaintiffs' complaint.

FACTS AND PROCEDURAL BACKGROUND

In July 1998, defendant Ahi Ezer contracted to purchase the real property located at 711 Caton Avenue, Brooklyn, New York with the intention of constructing a large residential healthcare facility at the premises. In March 2000, Ahi Ezer executed a joint venture agreement (hereinafter "the Agreement") and a supplemental agreement (hereinafter "the Supplemental Agreement") with plaintiffs Deborah Philipson and Benjamin Landa regarding the financing, construction and operation of the facility. At the time the agreements were executed, Ahi Ezer had already expended a significant amount of money to improve and re-zone the property and sought by these agreements, merely to have plaintiffs provide the financing for construction of the facility. Pursuant to both agreements, plaintiffs paid five hundred thousand dollars to Ahi Ezer upon execution, and an additional two hundred thousand dollars in March 2002. According to defendant Ahi Ezer, "the Agreements seemed to be progressing to plan, on or about August 4, 2003, plaintiffs unexpectedly sent a letter to [them], attempting to rescind the Agreements and demanding the return of the entire $700,000." Several weeks later, plaintiffs commenced an action against Martin Azrak (under index no. 37190/03) seeking the return of their contractual payments. In that complaint, plaintiffs alleged that they had the right to cancel the agreements in the event Ahi Ezer did not receive a commitment letter from the United States Department of Housing and Urban Development (hereinafter "HUD") on or before September 30, 2000, and that Ahi Ezer failed to obtain such commitment. The complaint further alleged that defendant Martin Azrak had personally guaranteed the return of the money to plaintiffs in the event of such a cancellation. On or about June 15, 2006, plaintiffs commenced a separate action against defendant Ahi Ezer based upon the same allegations. By order dated January 23, 2007, both actions were consolidated for trial.

In their motion, plaintiffs assert that "[d]ifficulties first arose when defendants failed to obtain a commitment letter from HUD" as required by the Supplemental Agreement and, therefore, plaintiffs elected to cancel the agreements and demand their money back. Based upon defendants' admission that the money has not been repaid, and given the language of paragraph 4 of the Supplemental Agreement,^[FN2] plaintiffs argue that summary judgment in their favor is [*3]warranted.

In their cross motion, defendants accuse plaintiffs of pre-textually canceling their agreements for the true purpose of usurping defendant Ahi Ezer's ability to purchase the real property and to ultimately obtain title to the property without having defendants as partners. According to defendants, the Supplemental Agreement allowed cancellation if all three conditions stated in paragraph 4 occurred, to wit: defendant failed to receive a commitment letter from HUD by September 30, 2000; defendant failed to complete the building by September 30, 2004; and the disapproval by the Department of Health of the transfer of a 50% interest to plaintiffs. Since plaintiffs' complaint only relies upon defendants' alleged failure to obtain the commitment, defendants argue that plaintiffs never effectively cancelled the agreements pursuant to its stated terms. Moreover, Ahi Ezer points out that a commitment letter was actually obtained from HUD on or about April 3, 2000 and has submitted a copy of it with the cross motion.

In opposition to the cross motion, plaintiffs assert that defendants never purchased the subject real property and, therefore, "[t]he purported commitment letter [from HUD] established nothing."

In reply, Ahi Ezer repeats its contention that there are three conjunctive conditions precedent which must all be met for plaintiffs to invoke the cancellation clause, only one of which is the failure to obtain the HUD commitment letter. Ali Ezer further asserts that "plaintiffs' only alleged basis for seeking to invoke the cancellation clause" is disproved by documentary evidence; to wit, the commitment letter. In referring to plaintiffs' comment that the commitment letter is irrelevant, Ahi Ezer points out that there is no provision in the agreements that requires defendants to purchase the property, as opposed to constructing a nursing home on it.

LAW AND APPLICATION

In a contract action, when the intention of the parties is fully determinable from the language employed in the agreement and there is no need to resort to evidence outside the written words to determine the intention of the parties, summary judgment is proper. See Long Island R.R. Co. v Northville Industries Corp., 41 NY2d 455, 461, 393 NYS2d 925 (1977). However, a motion for summary judgment should be denied if critical contractual language raises a question with respect to the true intent of the parties. See Mayland v Craighead, 144 AD2d 344, 533 NYS2d 946 (2nd Sept. 1988). In this case, the contractual language is clear and the expressed intent of the parties unambiguous.

In the "Commitment for Insurance of Advances" dated April 3, 2000, which is dated prior to the deadline date set in the supplemental agreement, HUD clearly pledged to insure a loan to defendant Ahi Ezer in the amount of $34,293,200 obtained from Olympia Mortgage. Plaintiffs do not challenge the authenticity of the document or whether it constitutes a commitment within the meaning of the Supplemental Agreement. Whether or not they received a copy of the commitment letter prior to September 30, 2000 is irrelevant, as there is no requirement in the Supplemental Agreement that Ahi Ezer do anything more than obtain the commitment. Accordingly, since defendants have demonstrated that plaintiffs did not have a valid basis upon which to predicate their cancellation of the agreements, the motion by plaintiffs is denied, the cross motion by defendants is granted and the complaint herein is dismissed. [*4]

CONCLUSION

In light of the above, plaintiffs' motion is denied and defendants' cross motion is granted. This constitutes the decision and order of the court.

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J.S.C.