By Scheinkman, P.J.; Chambers, Austin, Miller, JJ. MOHSIN Y. MEGHJI, app, v. JAMES LOUGHLIN, res — (Index No. 600194/13) Golenbock Eiseman Assor Bell & Peskoe LLP, New York, NY (Jeffrey T. Golenbock of counsel), for appellant. Forchelli Deegan Terrana LLP, Uniondale, NY (Jeffrey G. Stark and Nathan R. Jones of counsel), for respondent. In an action to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Edward A. Maron, J.), dated September 1, 2016. The judgment, upon a decision of the same court (F. Dana Winslow, J.), dated December 4, 2015, made after a nonjury trial, and a decision of the same court (Edward A. Maron, J.), dated June 2, 2016, made after a hearing on the issue of the amount of attorneys’ fees to be awarded to the defendant, is in favor of the defendant and against the plaintiff, in effect, dismissing the complaint and awarding the defendant attorneys’ fees in the principal sum of $673,331.90. ORDERED that the judgment is reversed, on the law and the facts, with costs, the plaintiff is awarded judgment, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of attorneys’ fees and the entry of an appropriate judgment thereafter. On October 14, 2011 (hereinafter the closing date), the plaintiff and the defendant entered into an agreement of purchase and sale of stock (hereinafter the PSA) wherein the defendant purchased the plaintiff’s shares of a corporation in which they were the sole shareholders. Paragraph 8.2 of the PSA provided that the plaintiff was entitled to, inter alia, the value of his share of the net working capital of the corporation as of the closing date. The year-end bonuses paid to the corporation’s employees were a significant corporate liability, which needed to be considered when calculating the corporation’s mid-year net working capital. Based upon the average bonuses paid for the preceding three years, the parties agreed to use 20% of revenue, as calculated pursuant to generally-accepted accounting principles (hereinafter GAAP), through the date of closing to project estimated total bonuses, subject to a “true up” at the end of the year. When the true up calculation was ultimately made, the parties disagreed upon the proper construction of the language of paragraph 8.2 of the PSA. The plaintiff thereafter commenced this action, contending, inter alia, that he was entitled to additional compensation pursuant to paragraph 8.2 of the PSA, and an award of attorneys’ fees, as provided in paragraph 10.11 of the PSA. The defendant counterclaimed for an award of attorneys’ fees, as provided in paragraph 10.11 of the PSA. After a nonjury trial, in a decision dated December 4, 2015, the Supreme Court directed dismissal of the complaint, granted the defendant’s counterclaim, and scheduled a hearing on the amount of attorneys’ fees to be awarded to the defendant. After the hearing, in a decision dated June 2, 2016, the court determined that the defendant was entitled to an award of attorneys’ fees in the principal sum of $673,331.90. The plaintiff appeals. Although the trial court did not state the essential facts upon which its determination was based (see CPLR 4213[b]), this Court has before it the complete trial record, which is sufficient to conduct an independent review of the evidence so as to make the requisite findings of fact (see Berde v. North Shore-Long Is. Jewish Health Sys., Inc., 162 AD3d 624, 625; Park E. Constr. Corp. v. East Coast Mech. Servs., Inc., 133 AD3d 581, 582; Matter of Deepti v. Kaushik, 126 AD3d 790). In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts (see Matter of State of New York v. Claude McC., 163 AD3d 686; Berde v. North Shore-Long Is. Jewish Health Sys., Inc., 162 AD3d at 625; Ciringione v. Ryan, 162 AD3d 634, 635; World Ambulette Transp., Inc. v. Lee, 161 AD3d 1028, 1030). Upon our independent review, the determination to dismiss the complaint was not warranted by the facts presented at trial. “[T]he ‘fundamental, neutral precept of contract interpretation…[is] that agreements are construed in accord with the parties’ intent,’ and ‘[t]he best evidence of what parties to a written agreement intend is what they say in their writing’” (2138747 Ontario, Inc. v. Samsung C&T Corp., 31 NY3d 372, 377, quoting Greenfield v. Philles Records, 98 NY2d 562, 569; see Marin v. Constitution Realty, LLC, 28 NY3d 666, 673). Accordingly, “‘[a] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms’” (Marin v. Constitution Realty, LLC, 28 NY3d at 673, quoting Greenfield v. Philles Records, 98 NY2d at 569; see Beardslee v. Inflection Energy, LLC, 25 NY3d 150, 157; NML Capital v. Republic of Argentina, 17 NY3d 250, 259; Brad H. v. City of New York, 17 NY3d 180, 185). Here, the PSA defined net working capital as current assets minus current liabilities, as calculated pursuant to GAAP, and provided that “[i]n the event that the actual annual bonuses paid to the Corporation’[s] employees for the calendar year 2011, pro-rated to account for the period of time between January 1, 2011, and the date of Closing, are less than the pro-rated amount of the bonuses used in the calculation of Net Working Capital, then the Corporation shall distribute to [the plaintiff] one-half of such difference.” The plain language of this clause, which explicitly refers to “the period of time” between the beginning of the year and the closing date, required that employee bonuses be prorated based upon the percentage of the year which had passed prior to the closing date, as argued by the plaintiff, rather than the percentage of the corporation’s revenue which had been realized prior to the closing date, as argued by the defendant. Accordingly, the Supreme Court should have awarded the plaintiff additional compensation pursuant to paragraph 8.2 of the PSA and attorneys’ fees pursuant to paragraph 10.11 of the PSA, and should have denied the defendant’s counterclaim for an award of attorneys’ fees. In light of the foregoing, we need not reach the plaintiff’s remaining contention. SCHEINKMAN, P.J., CHAMBERS, AUSTIN and MILLER, JJ., concur.
By Balkin, J.P.; Hinds-Radix, Connolly, Iannacci, JJ. ASTORIA LANDING, INC., app, v. NEW YORK CITY COUNCIL, ET AL., res — (Index No. 703002/16) Leavitt & Kerson, Forest Hills, NY (Paul E. Kerson of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, NY (Fay Ng and John Moore of counsel), for respondents. In an action for a judgment declaring that Administrative Code of the City of New York §25-207(a) violates the plaintiff’s federal and state constitutional rights to due process, the plaintiff appeals from an order of the Supreme Court, Queens County (Howard G. Lane, J.), dated March 1, 2017. The order granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint. ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint, and adding a provision thereto deeming the motion to be for a judgment declaring that Administrative Code of the City of New York §25-207(a) does not violate the plaintiff’s federal and state constitutional rights to due process, and thereupon granting the motion; as so modified, the order is affirmed, with costs to the defendants, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring that Administrative Code of the City of New York §25-207(a) does not violate the plaintiff’s federal and state constitutional rights to due process. Prior to the instant action, the plaintiff commenced a proceeding pursuant to CPLR article 78 against the New York City Board of Standards and Appeals (hereinafter BSA) to review a determination of the BSA dated December 4, 2012, rejecting its application to register an advertising sign (hereinafter the sign) painted on the wall of its four-story apartment building in Astoria. By order dated August 28, 2013, the Supreme Court granted the BSA’s motion pursuant to CPLR 3211(a)(5) and 7804 to dismiss the proceeding on the ground that the petition was time-barred under Administrative Code of the City of New York §25-207(a), which requires an aggrieved entity to present a petition “within [30] days after the filing of the decision in the office of the board.” On appeal, this Court affirmed (see Matter of Astoria Landing, Inc. v. New York City Bd. of Stds. & Appeals, 132 AD3d 986). In the instant action against the BSA and the New York City Council, the plaintiff seeks a judgment declaring that Administrative Code of the City of New York §25-207(a) violates its federal and state constitutional rights to due process because the code provision does not require the BSA to send copies of its decision to the aggrieved entity. By order dated March 1, 2017, the Supreme Court, referencing this Court’s decision and order on the prior appeal, directed dismissal on the ground that the action is barred by the doctrines of res judicata and collateral estoppel (see CPLR 3211[a][5]). The plaintiff appeals. “[W]here a plaintiff in a later action brings a claim for damages that could have been presented in a prior CPLR article 78 proceeding against the same party, based upon the same harm and arising out of the same or related facts, the claim is barred by res judicata” (Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 347-348 [internal quotation marks omitted]; see Williams v. City of Yonkers, 160 AD3d 1017, 1018; Matter of Carter v. Walt Whitman N.Y. City Hous. Auth., 98 AD3d 1113). “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Tel. Co., 62 NY2d 494, 500; see Conason v. Megan Holding, LLC, 25 NY3d 1, 17). “The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate” (Matter of Dunn, 24 NY3d 699, 704). Contrary to the Supreme Court’s determination, the evidence submitted by the defendants failed to conclusively establish that there was identity of the parties and the issues such that the CPLR article 78 proceeding had preclusive effect in this action (see Weslowski v. Zugibe, 167 AD3d 972, 975; Burgos v. New York Presbyt. Hosp., 155 AD3d 598, 600-601; Jensen v. Village of Old Westbury, 160 AD2d 768). Although the Supreme Court did not reach that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, we reach that issue as an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 NY2d 539; see also Wild Oaks, LLC v. Joseph A. Beehan, Jr. Gen. Contr., Inc., 77 AD3d 924, 926). The courts may consider “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 where ‘no questions of fact are presented [by the controversy]‘” (Matter of Tilcon, N.Y., Inc. v. Town of Poughkeepsie, 87 AD3d 1148, 1150, quoting Hoffman v. City of Syracuse, 2 NY2d 484, 487; see North Oyster Bay Baymen’s Assn. v. Town of Oyster Bay, 130 AD3d 885, 889). “Under such circumstances, the motion to dismiss the cause of action 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” (North Oyster Bay Baymen’s Assn. v. Town of Oyster Bay, 130 AD3d at 890 [internal quotation marks omitted]). In this case, as a matter of law, the plaintiff’s challenge to Administrative Code of the City of New York §25-207(a) is without merit (see Pagliaroli v. Zoning Bd. of Appeals of Vil. of Phoenix, 66 AD2d 997, 998; Alper v. Nowakowski, 58 AD2d 1012; see also Matter of King v. Chmielewski, 76 NY2d 182, 186). Accordingly, the Supreme Court should have deemed the motion to be a motion for a declaration in the defendants’ favor, and thereupon granted the motion. Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Queens County, for entry of a judgment, inter alia, declaring that Administrative Code of the City of New York §25-207(a) does not violate the plaintiff’s federal and state constitutional rights to due process (see Lanza v. Wagner, 11 NY2d 317, 334; Jahan v. U.S. Bank N.A., 127 AD3d 926). BALKIN, J.P., HINDS-RADIX, CONNOLLY and IANNACCI, JJ., concur.
