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Appellate Division_ Fourth Judicial Department

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

668
CA 04-03033
PRESENT: PIGOTT, JR., P.J., SCUDDER, GORSKI, MARTOCHE, AND LAWTON, JJ.


AMI CAPITAL, INC., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

PEREGRINE DEVELOPMENT CORPORATION, DOING
BUSINESS AS PEREGRINE DEVELOPMENT COMPANY,
PEREGRINE’S LANDING, LLC, WYATT FUNDING CORP.,
AND STEPHEN S. BOWMAN, INDIVIDUALLY AND DOING
BUSINESS AS PEREGRINE DEVELOPMENT COMPANY,
DEFENDANTS-RESPONDENTS.


BOYLAN, BROWN, CODE, VIGDOR & WILSON, LLP, ROCHESTER (A. KATHERINE
PICCOLA OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BYRNE, COSTELLO & PICKARD, P.C., SYRACUSE (ZEA M. WRIGHT OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County
(Norman W. Seiter, Jr., J.), entered September 27, 2004 in a breach of
contract action. The order, among other things, denied plaintiff’s
motion for summary judgment.

     It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously reversed on the law without costs, the
motion is granted, the cross motion is denied and judgment is ordered
in accordance with the following Memorandum: Plaintiff commenced this
action against, inter alia, defendant Peregrine Development
Corporation, doing business as Peregrine Development Company (PDC), to
recover a fee allegedly owed to plaintiff for assisting PDC in
obtaining Housing and Urban Development financing in excess of $9
million. Supreme Court erred in denying plaintiff’s motion for
summary judgment and in granting defendants’ cross motion for leave to
serve an amended answer. There is no support for defendants’
contention that PDC was released from its obligations under the
agreements at issue by assigning the benefits to defendant Peregrine’s
Landing, LLC. Plaintiff established as a matter of law that its
construction of the agreements “is the only construction which can
fairly be placed thereon” (Lipari v Maines Paper & Food Serv., 245
AD2d 1085, 1085 [internal quotation marks omitted]; see Arrow
Communication Labs. v Pico Prods., 206 AD2d 922, 922-923; see
generally Chimart Assoc. v Paul, 66 NY2d 570, 572-573), and defendants
failed to raise a triable issue of fact with respect thereto (see
generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).
                                 -2-                           668
                                                         CA 04-03033

     We therefore reverse the order, grant plaintiff’s motion, deny
defendants’ cross motion and order that judgment be entered in favor
of plaintiff and against defendants in the amount of $137,625,
representing 1.5% of the loan proceeds, together with interest
commencing November 22, 2002, the date on which the loan closed, plus
costs and disbursements.




Entered: July 1, 2005                           JOANN M. WAHL
                                                Clerk of the Court