Carpio v. Morris

2024 NY Slip Op 00293

Melvin Carpio, respondent, v. Cory Morris, appellant.

No. 2022-01245, Index No. 611610/21

Supreme Court of New York, Second Department

January 24, 2024

Young & Young, LLP, Central Islip, NY (Richard W. Young of counsel), for appellant.

Levin Law Group, Brooklyn, NY (Alexander Golant of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, BARRY E. WARHIT, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals from an order of the Supreme Court, Suffolk County (Kathy G Bergmann, J.), dated October 5, 2021. The order, insofar as appealed from, denied the defendant's motion, inter alia to vacate the notice of pendency and, in effect, pursuant to CPLR 3211(a) to dismiss the action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On January 4, 2021, the plaintiff (hereinafter the buyer) entered into a contract with the defendant to purchase certain real property located in Huntington Station (hereinafter the subject property). The contract included a mortgage contingency clause and provided that the buyer would make a down payment of $18,375. Additionally, pursuant to a rider to the contract, the parties agreed that, "[i]f after receipt of [a mortgage loan commitment], the lending institution fails to fund the loan, for any reason except bad faith act or omission of the [buyer], the contract shall be terminated and the downpayment returned." The buyer paid the down payment pursuant to the contract.

Thereafter the buyer commenced this action, alleging that a lender refused to fund his loan because the defendant failed to fix a pool cover at the subject property and, under these circumstances, the buyer was entitled to a return of the down payment pursuant to the rider. The buyer sought the return of his down payment or a "foreclosure on the deposit." Additionally, he filed a notice of pendency against the subject property. The defendant moved, inter alia, to vacate the notice of pendency and, in effect, pursuant to CPLR 3211(a)(1), (7), and (8) to dismiss the action. By order dated October 5, 2021, the Supreme Court, among other things, denied the defendant's motion. The defendant appeals.

The Supreme Court properly denied dismissal of the action pursuant to CPLR 3211(a)(1) and (7). On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must liberally construe the allegations, accept all facts as alleged to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Cantor v Villucci, 212 A.D.3d 765, 766; Gorbatov v Tsirelman, 155 A.D.3d 836, 837). "Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), and such proof is considered but the motion has not been converted to one for summary judgment, the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it[,]... dismissal should not eventuate" (Churong Liu v Gabbay, 219 A.D.3d 459, 460 [internal quotation marks omitted]; see Guggenheimer v Ginzburg, 43 N.Y.2d 268, 274-275). A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations and conclusively establishes a defense to the claims as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326; Gorbatov v Tsirelman, 155 A.D.3d at 837).

"The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages" (Pierce Coach Line, Inc. v Port Wash. Union Free Sch. Dist., 213 A.D.3d 959, 960 [internal quotation marks omitted]; see Stewart v Berger, 192 A.D.3d 940, 941). Here, as alleged, the contract provided that the buyer's down payment must be returned if the lending institution failed to fund his loan, but the defendant refused to return the down payment after the lender failed to fund the loan. Under the circumstances present here, these allegations were sufficient to set forth a cognizable cause of action against the defendant to recover damages for breach of contract (see Law Offs. of Harry J. Binder & Charles E Binder, P.C. v Fraga, 207 A.D.3d 455, 456). The defendant's submissions were insufficient to establish that a material fact claimed by the buyer was not a fact at all (see Guggenheimer v Ginzburg, 43 N.Y.2d at 274-275). Further, the defendant's submissions in support of his motion either did not constitute documentary evidence within the intendment of CPLR 3211(a)(1), or failed to utterly refute the buyer's...