Homapour v. Piroozian

210 A.D.3d 661

177 N.Y.S.3d 700

Shahriar HOMAPOUR, appellant,

v.Imanuel PIROOZIAN, respondent.

2020–01669

Index No. 611064/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 20, 2022

November 2, 2022

Law Office of Steven Cohn, P.C., Carle Place, NY (Alan S. Zigman of counsel), for appellant.

Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens, NY (Dustin Bowman of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action for specific performance of an option to purchase certain real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Vito M. DeStefano, J.), entered January 8, 2020. The order granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

Imanuel Piroozian and Shahriar Homapour were at all relevant times members of Higgins Ave, LLC (hereinafter the Company). In June 2004, the Company purchased certain property in Flushing (hereinafter the property). In 2006, a prior owner of the property commenced an action in the Supreme Court, Queens County (hereinafter the Queens action), against Piroozian, Homapour, and the Company, among others, alleging, inter alia, that the property had been fraudulently conveyed. During the pendency of the Queens action, Piroozian and Homapour entered into an agreement on February 2, 2010, entitled the Queens Warehouse Division Agreement (hereinafter the agreement), providing, among other things, for the sale of the property under certain conditions. The agreement provided that "[a]fter exhaustion of all available appellate remedies from any judgment resolving the Litigation," with the "Litigation" defined as the Queens action pending "between [Homapour and Piroozian] as the current owner[s] and the prior owner as to [Homapour's and Piroozian's] ownership rights in the Property," then the "Property," defined as a "warehouse in Queens" at a certain address, "will be sold" as set forth therein. The agreement provided that Piroozian would have 35 days to market the property, and no later than 5 days thereafter, would have the option to present a term sheet from either Piroozian or a third party to purchase the property at a price indicated by Piroozian, with Homapour, in effect, having a right of first refusal to purchase the property at the same price proposed by Piroozian. The agreement further provided that if Piroozian did not exercise his option within the time set for him to do so, Homapour could then present a term sheet to purchase Piroozian's interest in the property at a price set by Homapour.

On January 12, 2018, the Queens action was discontinued with prejudice as against Piroozian upon oral application by the property's prior owner, and a stipulation of settlement of the Queens action was executed by the property's prior owner, the Company, Homapour, and a third-party defendant, and was so-ordered by the Supreme Court. On February 2, 2018, a judgment was entered in the Queens action upon the so-ordered stipulation of settlement, and on February 22, 2018, the property's prior owner served notice of entry of the judgment upon the other parties.

On February 26, 2018, Homapour purported to exercise his option to purchase the property by submitting a term sheet for his purchase to Piroozian. Piroozian rejected the term sheet. Homapour then commenced this action against Piroozian seeking specific performance of his option to purchase the property pursuant to the agreement. Piroozian then moved, among other things, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, contending, inter alia, that Homapour failed to strictly adhere to the terms and conditions of his option to purchase the property in the agreement. By order entered January 8, 2020, the Supreme Court granted that branch of Piroozian's motion. Homapour appeals. We affirm.

A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Bonavita v. Government Empls. Ins. Co., 185 A.D.3d 892, 127 N.Y.S.3d 577 ). "Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" ( Bath & Twenty, LLC v. Federal Sav. Bank, 198 A.D.3d 855, 856, 156 N.Y.S.3d 316 [alterations and internal quotation marks omitted]; see JPMorgan Chase Bank, N.A. v. Klein, 178 A.D.3d 788, 790, 113 N.Y.S.3d 741 ).

"On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Murphy v. Department of Educ. of the City of N.Y., 155 A.D.3d 637, 638, 64 N.Y.S.3d 237 [internal quotation marks omitted]; see Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807, 60 N.Y.S.3d 67 ). "Where a court considers evidentiary material in determining a motion to dismiss a...