Hashkaot LLC v. Union Senior Citizens' Plaza, Inc.

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2023 NY Slip Op 31016(U)

HASHKAOT LLC, a Commonwealth of Virginia limited liability company, Plaintiff, v. UNION SENIOR CITIZENS' PLAZA, INC., A New York Not for Profit corporation, UNION SENIOR PLAZA, L.P., a New York limited partnership, UNION SENIOR CITIZEN PLAZA HOUSING DEVELOPMENT FUND COMPANY, INC., a New York Not for Profit Corporation, and GREYSTEEL NEW YORK, LLC, a foreign limited liability company, Defendants.

Index No. 608815-2022, Sequence No. 001, 002

Supreme Court, Nassau County

March 28, 2023

Unpublished Opinion

Motion Date: 11-28-2022

Motion Date: 12-15-2022

DECISION AND ORDER

HON JEROME C MURPHY, J.S.C.

PRELIMINARY STATEMENT

In Sequence No. OOE defendants Union Senior Citizen's Plaza Inc., Union Senior Plaza, L.P., and Union Senior Citizen Plaza Housing Development Fund Company, Inc. move: (1) pursuant to CPLR 3212 for summary judgment dismissing the complaint (counts I through V) insofar as asserted against them; (2) for leave to enter a default judgment against plaintiff on the issue of liability with respect to their counterclaims; (3) for leave to enter a judgment declaring that: (a) no enforceable contract exists between Union Senior Plaza, L.P. and plaintiff governing a sale of the real property at issue, and (b) plaintiffs notice of pendency is improper, has no legal effect, and is judicially removed; (4) in the alternative to the entry of a default judgment on its counterclaims pursuant to CPLR 3212, for summary judgment on the issue of liability on their counterclaims (Counts II-IV) against plaintiff; (5) to direct the Nassau County Clerk to immediately cancel the notice of pendency filed by plaintiff; (6) for all costs and expenses incurred to date in this litigation, including attorneys' fees, in an amount to be determined at a subsequent proceeding; and (7) for such other, further relief as the Court deems just and proper. Opposition and reply have been submitted.

In Sequence No. 002, plaintiff moves for permission to file a sur-response with respect to Motion Sequence No. 001. Opposition has been submitted.

BACKGROUND

In July 2022, plaintiff commenced this action against defendants Union Senior Citizens' Plaza, Inc., Union Senior Plaza, L.P., Union Senior Citizen Plaza Housing Development Fund Company, Inc. (hereinafter individually as Housing Development Fund and collectively with Union Senior Citizens' Plaza, Inc. and Union Senior Plaza, L.P. as the Union defendants) and Greysteel New York, LLC (hereinafter Greysteel), the real estate broker for Union Senior Plaza, L.P., for specific performance concerning the purchase of real property located at 151 S. Franklin Street, Hempstead, New York (hereinafter the subject.property), a senior affordable living housing complex, pursuant to the terms set forth in its letter of intent, dated May 18, 2022 (Count I against the Union defendants) and to recover damages for promissory estoppel (Count II against the Union defendants); breach of implied duty of good faith and fair dealing (Count III against the Union defendants); unjust enrichment (Count IV against the Union defendants); misrepresentation (Count V against the Union defendants and Greysteel); and unjust enrichment (Count VI against Greysteel)(See NYSCEF Doc. No. 2/Union Defendants' Ex. 9: Complaint). The complaint was verified by plaintiff's principal (see id.). Attached as exhibits to the complaint Were Greysteel's confidential offering memorandum (hereinafter the Offering); plaintiff's initial letter of intent, dated March 31, 2022, addressed to Greysteel which was not signed by either purchaser or seller; email between plaintiff's real estate broker and Greysteel regarding plaintiffs proof of funds; plaintiffs second letter of intent, dated May 4, 2022, addressed to Greysteel which was signed by plaintiff's principal/managing member but not by seller; plaintiff's final letter of intent, dated May 18, 2022 [hereinafter LOI], addressed to Greysteel which was signed by plaintiff's principal/managing member but not by seller; and emails between Greysteel and plaintiffs real estate broker concerning Greysteel's acknowledgment of plaintiff's. final letter of intent (see NYSCEF Doc Nos. 3-8). Plaintiff also filed a notice of pendency against the subject property, the proposed sale of which is the subject of this litigation (see NYSCEF Doc. Nos. 9 &10/Union Defendants' Ex. 8: Notice of Pendency).

The Union defendants answered the complaint on August 18,2022 (see N YSCEF Doc. No. 25/Union Defendants' Ex, 10: Union Defendants' Answer). In their answer, they raised various affirmative defenses including that the causes of action set forth against them were barred by the statute of frauds and the fact that no contract of sale to sell the subject property existed (see id.). Moreover, the Union defendants interposed four counterclaims against plaintiff, to wit: for a judgment declaring that no enforceable contract existed between plaintiff and Union Senior Plaza, L.P. with respect to the sale of the subject property and that plaintiffs notice of pendency is improper and has no legal effect (Count I); for special damages for slander of title due to the improper filing by plaintiff of the notice of pendency and an injunction with respect to the removal of the notice of pendency (Count II); for damages for tortious interference with the contract of sale (Count III); and for damages for tortious interference with prospective economic advantage (Count IV)(see id.). Annexed as exhibits to the Union defendants' answer was the amended and restated agreement of limited partnership of Union Senior Plaza, L.P.; option and right of first refusal agreement (hereinafter ROFR) between Union Senior Plaza, L.P,, and Housing Development Fund; letter dated February 17, 2022, from Alden Torch Financial, regarding a certain assignment and assumption agreement and transfer of LP interests; letter dated May 23, 2022, from Alden Torch Financial, regarding proposed sale of the subject property; emails, dated June 2022, between counsel for Alden Torch Financial and plaintiff regarding ROFR; letter dated June 16, 2022, from Alden Torch Financial, to Housing Development Fund, and its counsel regarding ROFR; and letter from counsel for Housing Development Fund, dated June 21,2022, to Union Senior Plaza, L.P. and Alden LP, LLC, regarding election of ROFR (see NYSCEF Doc. Nos. 26-32/Union Defendants' Ex. 1-7: Exhibits A through G to the Union Defendants' Answer). The answer and counterclaims were verified by the chair of the Board and president of Union Senior Citizens' Plaza, Inc., the sole owner of Housing Development Fund, which is the general partner of Union Senior Plaza, L.P. (see NYSCEF Doc. No. 33/Union Defendants' Ex. 10: Verification of Marilyn Thornton).

The Union defendants move, pursuant to CPLR 3212, for summary judgment dismissing the complaint (counts I throughV) insofar as asserted against them; for leave to enter a default judgment against plaintiff on the issue of liability with respect to their counterclaims; and (3) for leave to enter a judgment declaring that: (a) no enforceable contract exists between Union Senior Plaza, L.P. and plaintiff governing a sale of the real property at issue, and (b) plaintiffs notice of pendency is improper, has no legal effect, and is judicially removed; (4) in the alternative to the entry of a default judgment on its counterclaims, pursuant to CPLR 3212, for summary judgment on the issue of liability on their counterclaims; (5) to direct the Nassau County Clerk to immediately Cancel the notice of pendency filed by plaintiff; (6) for all costs and expenses incurred to date in this litigation, including attorneys' fees, in an amount to be determined at a subsequent proceeding; and (7) for such other, further relief as the Court deems just and proper. Opposition and reply have been submitted.

Plaintiff moves for permission to: file a sur-response with respect to Motion Sequence No. 001. Opposition has been submitted.

DISCUSSION

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,853 [1985]; see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "This burden is a heavy one and on a motion for summary' judgment, 'facts must be viewed in the light most favorable to the non-moving party'" (William J. Jenack Estate Appraisers &Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470,475 [2013],quoting Vega v Restani Constr. Corp., 18 N.Y.3d 499,503 [2012]). "Only if the movant meets that standard does the burden then shift to the party opposing summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact" (Scurry v New York City Hous. Auth., 193 A.D.3d 1,9 [2^nd Dept. 2021]; see Alvarez v Prospect Hosp., 68 N.Y.2d at 324; Zuckerman v City of New York, 49 N.Y.2d at 562). The "[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at 853). "Ultimately, the role for the court in addressing motions for summary judgment is issue finding rather than issue resolution" (Scurry v New York City Hous. Auth., 193 A.D.3d at 9; see Kriz v Schum, 75 N.Y.2d 25, 33 [1989]).

"Under the statute of frauds, a contract for the sale of real property must be evidenced by a writing" (Cohen v Holder, 204 A.D.3d 973,975 [2^nd Dept, 2022]; see Genera] Obligations Law § 5703 [1]; Piller v Marsam Realty 13'" Ave., LLC, 16 A.D.3d 773, 773 [2^nd Dept. 2016]). The writing must "identify the parties, describe the subj ect matter, be signed by ...