        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

959
CA 10-02444
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ.


KAUFMANN’S CAROUSEL, INC., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CAROUSEL CENTER COMPANY LP AND CITY OF SYRACUSE
INDUSTRIAL DEVELOPMENT AGENCY,
DEFENDANTS-RESPONDENTS.
(ACTION NO. 1.)
-----------------------------------------------
LORD & TAYLOR CAROUSEL, INC.,
PLAINTIFF-APPELLANT,

                    V

CAROUSEL CENTER COMPANY LP AND CITY OF SYRACUSE
INDUSTRIAL DEVELOPMENT AGENCY,
DEFENDANTS-RESPONDENTS.
(ACTION NO. 2.)
-----------------------------------------------
LT PROPCO, LLC, PLAINTIFF-APPELLANT,

                    V

CAROUSEL CENTER COMPANY LP AND CITY OF SYRACUSE
INDUSTRIAL DEVELOPMENT AGENCY,
DEFENDANTS-RESPONDENTS.
(ACTION NO. 3.)


HARRIS BEACH PLLC, PITTSFORD (DOUGLAS A. FOSS OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

GILBERTI STINZIANO HEINTZ & SMITH, P.C., SYRACUSE (KEVIN G. ROE OF
COUNSEL), FOR DEFENDANT-RESPONDENT CAROUSEL CENTER COMPANY LP.

HISCOCK & BARCLAY, LLP, BUFFALO (MARK R. MCNAMARA OF COUNSEL), FOR
DEFENDANT-RESPONDENT CITY OF SYRACUSE INDUSTRIAL DEVELOPMENT AGENCY.


     Appeals from an order and judgment (one paper) of the Supreme
Court, Onondaga County (John C. Cherundolo, A.J.), entered March 9,
2010. The order and judgment, among other things, denied plaintiffs’
motion to compel discovery and granted defendant Carousel Center
Company LP’s cross motion for partial summary judgment on its first
counterclaim.
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                                                         CA 10-02444

     It is hereby ORDERED that said appeals by plaintiffs Lord &
Taylor Carousel, Inc. and LT Propco, LLC are unanimously dismissed and
the order and judgment is otherwise affirmed without costs.

     Memorandum: The plaintiff in each action appeals from an order
and judgment that denied plaintiffs’ motion to compel discovery,
granted the cross motion of Carousel Center Company LP, a defendant in
each action (defendant), seeking partial summary judgment on its first
counterclaim against Kaufmann’s Carousel, Inc., the plaintiff in
action No. 1 (plaintiff), and awarded defendant a judgment against
plaintiff in the amount of $3,365,834.21, together with interest,
costs and disbursements. We note at the outset that the appeals taken
by the plaintiff in action No. 2, Lord & Taylor Carousel, Inc. (Lord &
Taylor), and the plaintiff in action No. 3, LT Propco, LLC (LT
Propco), must be dismissed. On a prior appeal that was before us
while the motion and cross motion were pending (LT Propco, LLC v
Carousel Ctr. Co., L.P. [appeal No. 2], 68 AD3d 1697, lv dismissed in
part and denied in part 15 NY3d 743), we affirmed an order that, inter
alia, dismissed Lord & Taylor’s action inasmuch as its interest in the
store located in the Carousel Center was sold to LT Propco, and Lord &
Taylor thus lacked standing (LT Propco, LLC [appeal No. 3], 68 AD3d
1697). Further, defendant never asserted a counterclaim against LT
Propco, and LT Propco conceded that its action therefore terminated in
a judgment that we affirmed in a related prior appeal (id.). Thus,
neither of those parties is aggrieved (see generally Matter of
Reynolds v Essex County, 66 AD3d 1097).

     We reject plaintiff’s contention that Supreme Court erred in
granting defendant’s cross motion for partial summary judgment on its
first counterclaim against plaintiff, for damages based on plaintiff’s
failure to make contributions to a payment in lieu of taxes (PILOT)
agreement in breach of the Construction, Operation and Reciprocal
Easement Agreement (REA). Defendant met its burden of establishing
its entitlement to judgment as a matter of law (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff contends
that the court erred in failing to include the additional square
footage of the expansion to Carousel Center in calculating plaintiff’s
PILOT contributions. We previously addressed that issue in the prior
appeals from the order and judgment noted above. In those appeals, we
concluded that the court properly determined that plaintiffs were not
entitled to a declaration that they have no obligation to pay
defendant amounts serving as contributions to the PILOT agreement (LT
Propco, LLC [appeal No. 3], 68 AD3d at 1699-1700). We stated that
“the court properly declared that plaintiff[] remained obligated to
make contributions to PILOT payments in accordance with the REA, even
if the amount of such contributions exceeds the amounts previously
paid. Additionally, because the current PILOT agreement separates the
existent Carousel Center from any expansion parcels, there was no need
for the court to declare a new formula by which the parties should
calculate plaintiff[’s] PILOT contributions” (id. at 1700). “Our
determination is ‘the law of the case and cannot be disturbed on this
appeal’ ” (Trisvan v County of Monroe, 55 AD3d 1282, 1283, lv denied
11 NY3d 716).
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                                                         CA 10-02444

     We conclude that plaintiff failed to raise a triable issue of
fact whether defendant incorrectly calculated the amount of
plaintiff’s PILOT contributions. Pursuant to the REA, plaintiff’s
contribution is to be determined by multiplying the total amount
defendant is obligated to pay pursuant to a PILOT agreement with the
City of Syracuse “by a fraction[,] the numerator of which shall be the
number of square feet of [f]loor [a]rea of all building on
[plaintiff’s p]arcel and the denominator of which shall be the number
of square feet of [f]loor [a]rea of all building in the Shopping
Center.” Defendant submitted evidence establishing that plaintiff and
defendant have used 1,238,936 square feet as the denominator in that
calculation for more than 12 years and that plaintiff has never
objected to the use of that number (see generally Goldman Copeland
Assoc. v Goodstein Bros. & Co., 268 AD2d 370, lv dismissed 95 NY2d
825, 96 NY2d 796, rearg denied 96 NY2d 897). Although plaintiff
submitted evidence in opposition to the cross motion establishing that
other entities not involved in the present litigation have attributed
a higher square footage to the Carousel Center, there is no indication
that those other entities calculated the square footage in the manner
required by the REA. Plaintiff’s “mere hope or speculation” that
further discovery will lead to evidence sufficient to defeat
defendant’s cross motion is insufficient to warrant denial thereof
(Lopez v WS Distrib., Inc., 34 AD3d 759, 760).




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
