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Decided on July 16, 2008
Supreme Court, Suffolk County

26224-05
MEYER, SUOZZI, ENGLISH & KLEIN Attys. For Plaintiffs 1505 Kellum Pl. Mineola, NY 11501 ESSEKS, HEFTER & ANGEL Attys. For Def. Cahill
P.O. Box 279
Riverhead, NY 11901
Thomas F. Whelan, J.
ORDERED that this motion (#
005) by plaintiffs seeking an Order pursuant to CPLR 602, consolidating the above action with an action entitled Nelson Gerard and Buckskill Farm, LLC v Catherine Cahill, bearing Suffolk County Index No. 07-37856 and pursuant to CPLR 510, granting a change of venue to Nassau County, among other things, is denied as moot in view of this decision; and it is further
ORDERED that this cross motion (#
006) by defendant, Catherine Cahill, for an Order pursuant to CPLR 3212, granting said defendant summary judgment dismissing the action upon the grounds that there are no issues of fact, is granted and the amended complaint is dismissed.
In November, 2005, the plaintiffs commenced this action against Marvin Hyman (hereinafter "Hyman"), now deceased, to recover, among other things, monies purportedly due under the terms of the June 1, 2003 Operating Agreement (hereinafter "Operating Agreement") of the plaintiff, Buckskill Farm, LLC (hereinafter "LLC"), as purportedly amended in 2004, or by reason of Hyman's breach thereof or tortious conduct in connection therewith. On December 2, 2005, after a lengthy hearing, this Court denied the plaintiffs' motion for preliminary injunctive relief. Shortly thereafter, the plaintiffs served an amended complaint pursuant to CPLR 3025. Following the death of defendant Hyman in December of 2005, defendant, Catherine Cahill (hereinafter "Cahill), in her capacity as executrix of the Estate of Marvin Hyman, was substituted as a party defendant in the place of her late husband.
In December, 2007, the plaintiffs commenced a related action against Cahill in her individual capacity, seeking recovery in tort of money damages. That action is now pending in the IAS inventory of this Court and is the subject, in part, of the current motion-in-chief (#
005) by the plaintiffs.
In June, 2003, the plaintiff, Nelson Gerard (hereinafter "Gerard"), and the deceased defendant Hyman founded the plaintiff LLC and executed the Operating Agreement. The purpose of the LLC was the purchase and development of a 9.6 acre tract of land situated in East Hampton, New York, known as Buckskill Farm. Gerard and Hyman were the sole members and managers of the LLC and each were required to act in concert with one another. Capital contributions, which included cash, property and services, were fixed at $2,000,000.00 for Gerard and $350,000.00 for Hyman. Gerard satisfied his capital contribution by posting $2,000,000.00 towards the purchase price of Buckskill Farm at the closing of title and Hyman was credited with $117,900.00 towards his capital contribution requirements at the time of the execution of the Operating Agreement.
Reflective of the disparity in the capital contribution requirements of Gerard and Hyman was the "distribution" portion of the Operating Agreement, which is set forth as Exhibit "C" thereof. Pursuant thereto, a distribution of lots to Gerard and Hyman or a buyout of Hyman's interest in the LLC was triggered by the filing of a subdivision map in the Office of the Suffolk [*2]County Clerk. Since the lot yield of the subdivision to be filed was unknown to both Gerard and Hyman at the time of the execution of the Operating Agreement, the distribution clause provided the following possible scenarios:
(a)A map yielding eight (8) lots plus a reserve area shall be divided five (5) lots to NELSON GERARD and an undivided one half interest n the reserve area. Three (3) lots plus an undivided one half interest in the reserve area to MARVIN HYMAN.
(b)A map yielding seven (7) lots plus a reserve area shall be divided five (5) lots to NELSON GERARD, two (2) lots to MARVIN HYMAN, and each shall have an undivided one half interest in the reserve area.
(c)A map yielding six (6) lots plus a reserve area shall be divided five (5) lots to NELSON GERARD, one (1) lot to MARVIN HYMAN, and each shall have an undivided one half interest in the reserve area.
(d)In a map yielding five (5) or four (4) lots plus a reserve area, all lots shall be distributed to NELSON GERARD. MARVIN HYMAN shall receive the reserve area.
(e)Should a map yield three (3) lots or less, NELSON GERARD shall have the option to have MARVIN HYMAN purchase his interest in the company for the amount of NELSON GERARD'S capital contribution of $2,000,000. MARVIN HYMAN shall have one hundred twenty (120) days to purchase NELSON GERARD's interest. Should NELSON GERARD not exercise his option as stated above, all lots on the map shall be distributed to NELSON GERARD. MARVIN HYMAN shall receive the reserve area.
Article VIII,

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