3022 Ave. I Partners, LLC v. Logan

1

2024 NY Slip Op 32631(U)

3022 AVENUE I PARTNERS, LLC, Plaintiff, v. ANNETTE E. LOGAN, Defendant.

ANNETTE E. LOGAN, Counterclaimant, v. 3022 AVENUE 1 PARTNERS, LLC, SOLOMON KOHAN, ALAN J. SASSON, ESQ., Counterclaim Defendants.

Index No. 533611/2022, Mot. Seq. Nos. 1 & 2

Supreme Court, Kings County

July 18, 2024

Unpublished Opinion

Motion Date: 03/13/2024

Motion Cal. No.: 1

PRESENT: HON. RICHARD J. MONTELIONE. J.S.C.

DECISION AND ORDER

Richard J. Montelione Judge:

The following papers were read on this motion pursuant to CPLR 2219(a):

Papers

Numbered

Plaintiffs Notice of Motion for Summary Judgment for Breach of Contract and Specific Performance; Attorney Affirmation in Support of the Motion affirmed by Nissan Shapiro, Esq. on September 12, 2023, Exhibit 1-Contract of Sale; Exhibit 2-Affidavit of Soroosh Fajiram; Exhibit 3-Time of the Essence Notice; Exhibit 9-Wire Transfer Statement; Exhibit 10-Retainer Agreement...........................................................

12-15, 21

Defendant's Notice of Cross-Motion for Leave to Serve an Amended Answer to Replead Affirmative Defenses; Attorney Affirmation in Opposition to Motion and in Support of Cross-Motion affirmed by Ishelli L. Oliver, Esq. on November 29, 2023, Affidavit of Annette E. Logan in Opposition to Motion and in Support of Cross-Motion, Exhibit A-Summons and Complaint; Exhibit B-Verified Answer with Counterclaims and Cross-claims & Summons on Cross-claims; Exhibit F-Proposed Amended Answer.......................................................................

24-28, 32

Plaintiff's Affirmation in Opposition to Cross-Motion and in Further Support of Motion affirmed by Nissan Shapiro, Esq, on March 6, 2024....................................................................

33

Defendant's Affirmation in Reply affirmed by Ishelli L. Oliver. Esq, on March 10, 2024..............

34

MONTELIONE RICHARD J., J.

Plaintiff 3022 Avenue 1 Partners, LLC ("Plaintiff') commenced this action by filing a summons and complaint on November 16, 2022. Issue was joined by defendant Annette E. Logan ("Defendant") interposing an answer with counterclaims on February 18, 2023. Plaintiff now moves for summary judgment in its favor, pursuant to CPLR 3212, on all causes of action against defendant, and to strike defendant's counterclaims and affirmative defenses, pursuant to CPLR 3211(b). Plaintiff further demands an order, pursuant to CPLR 5107, authorizing the Sheriff of Kings County to convey the subject premises to plaintiff in the event that Defendant fails to do so within fifteen (15) days of this Court's order. (Motion Seq. #1). Defendant cross-moves for leave to amend her verified answer and replead affirmative defenses, pursuant to CPLR 3025(b). (Motion Seq. #2).

This is an action for breach of contract and specific performance of a contract of sale ("Contract of Sale" or "Contract") for real property located at 3022 Avenue I, Brooklyn, New York 11210, Block: 7594 Lot: 49 ("Premises"). On or about May 13, 2022, plaintiff and defendant fully executed a written contract of sale for the sale of the premises. Both parties were represented by counsel at the time of signing the contract. Upon the execution of the contract on May 13, 2022, plaintiff tendered $10,000.00 to defendant to be held in escrow. See NYSCEF #21. The remaining balance due at closing was $520,000.00. The contract contemplated a closing date "on or before Thirty (30) days from when contract [plaintiff s] Attorney receive[d] a fully executed contract." NYSCEF #2, ¶l 5. Plaintiff alleges that after the execution of the contract, defendant breached her obligations under the contract by demonstrating an unwillingness to close within a reasonable time.

"A motion for summary judgment will be granted if, upon all papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law." CPLR 3212 (b); Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967 (1988); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). On such a motion, the evidence will be construed in a light most favorable to the party against whom summary judgment is sought. Spinelli v. Procassini, 258 A.D.2d 577 (2d Dep't 1999); Tassone v. Johannemann, 232 A.D.2d 627, 628 (2d Dep't 1996); Weiss v. Garfield, 21 A.D.2d 156, 158 (3d Dep't 1964). The movant must therefore offer sufficient evidence in admissible form to eliminate all material questions of fact. Alvarez v. Prospect Hosp, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, supra at 562; Friends of Animals, Inc v. Associated Fur Mfrs, Inc, 46 N.Y.2d 1065 (1979).

"The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiffs performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach." Morrow v. Vibration Mounting & Controls, Inc., 223 A.D.3d 736, 737 (2d Dep't 2024) (quoting, Reznick v. Bluegreen Resort Mgt., Inc., 154 A.D.3d 891, 893 (2d Dep't 2017)). "In New York, the default accrual rule for breach of contract.. .is that the cause of action accrues when the contract is breached." Deutsche Bank Natl Tr. Co. Tr. for Harborview Mtge. Loan Tr. v. Flagstar Capital Markets Corp., 32 N.Y.3d 139, 145 (2018) [citations omitted], "Specific performance is an appropriate remedy for a breach of contract concerning goods that "are unique in kind, quality or personal association" where suitable substitutes are unobtainable or unreasonably difficult or inconvenient to procure." Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 415 (2001). "A party seeking specific performance of a real estate contract must establish that it was ready, willing, and able to perform its obligations under the contract "on the original law day or, if time is not of the essence, on a subsequent date fixed by the parties or within a reasonable time thereafter". Zeitoune v. Cohen, 66 A.D.3d 889, 891 (2d Dep't 2009), (quoting Ferrone v. Tupper, 304 A.D.2d 524, 525 (2d Dep't 2003)). "What constitutes a reasonable time to perform turns on the circumstances of the case." Point Holding, LLC v. Crittenden, 119 A.D.3d 918, 919 (2d Dep't 2014), (citing Revital Realty Group, LLC v. Ulano Corp., 112 A.D.3d at 904 (2d Dep't 2013)). "Time may be made of the essence by clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time in which to act." Id. If plaintiff fails to establish that he was "ready, willing, and able to satisfy his obligations..." under the contract of sale, recovery is barred under theories of specific performance and breach of contract. Stojowski v. D'sa, 28 A.D.3d 645 (2d Dep't 2006); Novello v. 215 Rockaway, LLC 70 A.D.3d 909 at 909-910, (2d Dep't 2010).

In the case at bar, it is undisputed that a contract of sale was signed by the parties on May 13, 2022, which by the terms of the contract set a closing date on or about June 13, 2022. In accordance with its obligations under paragraph 3 of the contract, plaintiff wire transferred a downpayment of $ 10,000.00 to be held in escrow by defendant's attorney on May 13, 2022. NYSCEF #21. Thereafter, plaintiff alleges that defendant requested and was granted several adjournments of the closing date. Defendant allegedly requested an initial adjournment to evict her brother from the premises. NYSCEF Doc #33. Defendant then allegedly requested an additional adjournment to vacate judgments under index numbers 521533/2016 and 515220/2020 that were discovered by plaintiff after examination of the title. NYSCEF #12. The eviction of the defendant's brother was allegedly completed at the end of August 2022. Id. Plaintiff then granted defendant more time to vacate the judgments. Id. On November 16, 2022, plaintiff became aware that defendant was not successful in vacating the judgments. Id. Thereafter on November 16, 2022, plaintiff sent to defendant and her attorney a letter advising that time was of the essence ("TOE letter"), and that closing would occur on December 23, 2022. NYSCEF #15. Notably, the plaintiffs complaint fails to allege a date of breach and it is devoid of facts establishing defendant's breach after time was made of the essence. In fact, defendant did not breach the contract because the date provided in the TOE letter by plaintiff had not yet passed. Plaintiffs contention that the defendant was unable or unwilling to close because of the judgments and eviction proceedings is unavailing because neither occupancy of the premises nor open judgments constitute defects in title that prevent closing pursuant to the contract of sale. See, Ex. 1, ¶ 20, 33-34. On November 16, 2022, the same day the TOE letter was sent scheduling the closing for December 23, 2022, plaintiff commenced this action. This action is premature and will be dismissed because no cause of action for breach of contract existed on the date of commencement. See Drucker v. N.Y.City Agency FISA, 8 A.D.3d 666, 778 N.Y.S.2d 890 (AD 2^nd Dept. 2004). (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 A.D.3d 862, 890 N.Y.S.2d 545 [AD 2d Dept 2009]); Cf. Mount Sinai Hosp, v Dust Tr., Inc., 117 A.D.3d 921, 986 N.Y.S.2d 506 [AD 2d Dept 2014]).

Moreover the court...