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

65
CA 13-00405
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


PLAZA DRIVE GROUP OF CNY, LLC,
PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

TOWN OF SENNETT, DEFENDANT-RESPONDENT.


CAMARDO LAW FIRM, P.C., AUBURN (KEVIN M. MENDILLO OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

GALBATO LAW FIRM, AUBURN (RICCARDO T. GALBATO OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Cayuga County (Thomas G. Leone, A.J.), entered November 21, 2012 in a
declaratory judgment action. The judgment, insofar as appealed from,
granted that part of the cross motion of defendant seeking to dismiss
the second cause of action.

     It is hereby ORDERED that   the judgment insofar as appealed from
is unanimously reversed on the   law without costs, that part of the
judgment dismissing the second   cause of action is vacated and judgment
is granted thereon in favor of   defendant as follows:

          It is ADJUDGED and DECLARED that the unsigned February
     6, 2012 letter is not a binding contract on defendant and is
     unenforceable against it.

     Memorandum: As limited by its brief, plaintiff, a local
commercial developer, contends on appeal that Supreme Court erred in
granting that part of defendant’s cross motion seeking dismissal of
the second cause of action. In that cause of action, plaintiff
sought a declaration of the parties’ rights and legal relations
pursuant to an unsigned letter dated February 6, 2012 from plaintiff
to defendant, which contained terms relating to the installation of a
duplicate water meter and water meter pit at a shopping plaza
developed by plaintiff. Plaintiff attached a check to its letter upon
which it noted “water meter pit final,” and plaintiff set forth in the
letter that the check was payment for the final balance due to
defendant for the cost associated with the duplicate water meter.
According to plaintiff, defendant’s acceptance of the check and
deposit of it constituted an accord and satisfaction of costs
associated with the duplicate water meter and pit and defendant
thereby accepted the terms of the letter, rendering it a binding
                                 -2-                              65
                                                           CA 13-00405

contract upon defendant.

     We note at the outset that “[a] motion to dismiss [a cause of
action seeking a declaration] ‘presents for consideration only the
issue of whether a cause of action for declaratory relief is set
forth, not the question of whether the plaintiff is entitled to a
favorable declaration’ ” (DiGiorgio v 1109-1113 Manhattan Ave.
Partners, LLC, 102 AD3d 725, 728). “[W]here a cause of action is
sufficient to invoke the court’s power to ‘render a declaratory
judgment . . . as to the rights and other legal relations of the
parties to a justiciable controversy’ . . . , a motion to dismiss that
cause of action should be denied” (Matter of Tilcon N.Y., Inc. v Town
of Poughkeepsie, 87 AD3d 1148, 1150; see St. Lawrence Univ. v Trustees
of Theol. Sch. of St. Lawrence Univ., 20 NY2d 317, 325). Where,
however, no questions of fact are presented, a court may reach the
merits of a properly pleaded cause of action for a declaratory
judgment upon a motion to dismiss for failure to state a cause of
action (see Hoffman v City of Syracuse, 2 NY2d 484, 487) and, “[u]nder
such circumstances, the ‘motion [to dismiss for failure to state a
cause of action] should be taken as a motion for a declaration in the
defendant’s favor and treated accordingly’ ” (Tilcon, 87 AD3d at
1150).

     Deeming the material allegations of the complaint to be true, we
conclude that the allegations in the second cause of action presented
a justiciable controversy sufficient to invoke the court’s power to
render a declaratory judgment (see North Shore Towers Apts. Inc. v
Three Towers Assoc., 104 AD3d 825, 827; DiGiorgio, 102 AD3d at 728-
729). Furthermore, we are able to determine, as a matter of law, that
defendant is entitled to a declaration in its favor (see Hoffman, 2
NY2d at 487; DiGiorgio, 102 AD3d at 728). Plaintiff has not alleged
that defendant’s town board considered or approved plaintiff’s
unsigned letter agreement as required by Town Law § 64 (6) so as to
establish a valid contract. The unsigned letter therefore does not
constitute a valid binding agreement and is unenforceable against
defendant. Contrary to plaintiff’s contention, defendant did not
ratify the unsigned letter agreement by accepting plaintiff’s check
(see generally JRP Old Riverhead Ltd. v Town of Southampton, 44 AD3d
905, 909).

     Plaintiff’s alternative contention,   i.e., that the parties could
not be bound by their prior agreement if   defendant was not bound by
the letter, is raised for the first time   on appeal and thus is not
properly before us (see Ciesinski v Town   of Aurora, 202 AD2d 984,
985).




Entered:   March 21, 2014                         Frances E. Cafarell
                                                  Clerk of the Court
