Party Barred from Arguing on Summary Judgment that the Version of a Contract it had Used Throughout the Litigation Was Not the Correct One

On September 9, 2022, Justice Chan of the New York County Commercial Division issued a decision in Victor RPM First, LLC v. Charles Condominiums, LLC, 2022 NY Slip Op. 33053(U), barring a party from arguing on summary judgment that the version of a contract it had used throughout the litigation was not the correct one, explaining:

In opposition, Victor presents, for the first time in this litigation, another Amended and Restated Development Agreement dated January 17, 2013. Victor claims that the initial Development Agreement was mistakenly filed with its complaint. . . .

Charles characterizes Victor’s use of this new Development Agreement II as a ploy to raise an issue of fact to defeat summary judgment. Citing Garber v Stevens (94 AD3d 426 [1st Dept 2012]), Charles argues that Victor’s submission and reliance on the initial Development Agreement at all times prior to Victor’s opposition in this motion constitutes a judicial admission. And
based on the unambiguous Development Agreement, Charles concludes that its motion for summary judgment should be granted. Charles’ argument is persuasive on this second argument.

A review of Victor’s proffered Development Agreement II, which is supported by Shuster’s affirmation and Karolik’s affidavit, does not open the door to Victor’s attempt to substitute the Development Agreement II as the “true” agreement. Shuster’s signature, on behalf of Victor, appears on both documents. Signatures on behalf of Charles appear only on the Development Agreement II. No signature on behalf of Charles appears on the Development Agreement. However, the blank signature page in the initially filed Development Agreement shows tell ·tale signs of whited-out signatures on the signature lines for Charles’ signatories.

Victor’s attempt to use the Development Agreement II to contradict its own document- the Development Agreement-that Victor filed in support of its verified complaint and amended verified complaint fails. At this point in this litigation, not only was the allegedly incorrect Development Agreement relied upon by Victor in prior motions, but it was also the document used in the decisions rendered for Victor’s motion for preliminary junction and a temporary restraining order, and Charles’ motions to dismiss the complaint and the amended complaint. Given Victor’s late “discovery” of the “real” Agreement (both documents
in Victor’s control), and. the dubious nature of the signature page, along with Victor’s owners’ affidavits, which are self·serving, little to no weight can be accorded to Victor’s proffered Development Agreement II. Victor’s attempt here is insufficient to raise an issue of fact as to which Agreement is the true document binding the parties. Hence, the Development Agreement that Victor filed with its verified complaint, amended verified complaint, and in all the prior motions, which were supported with affidavits of Victor’s principal, remains the one in use in this motion and action.

(Internal quotations and citations omitted).