Piroozian v. Homapour

210 A.D.3d 709

177 N.Y.S.3d 677

Imanuel PIROOZIAN, appellant,

v.Shahriar HOMAPOUR, respondent.

2020–01668

Index No. 617286/18

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

Argued—September 20, 2022

November 2, 2022

Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens, NY (Dustin Bowman and Matthew J. Routh of counsel), for appellant.

Law Office of Steven Cohn, P.C., Carle Place, NY (Alan S. Zigman 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 the defendant's motion 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 then 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.

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. In March 2018, Piroozian filed a notice of appeal from the judgment. He never perfected the appeal, and ultimately withdrew the appeal in November 2018. On December 19, 2018, Piroozian purported to exercise his option in the agreement to purchase the property by submitting a term sheet to Homapour reflecting that Piroozian would purchase "[the Company], the interests of all its members, and its assets, including clean title to the [property]," for the sum of $21,000,000. The term sheet set forth additional terms and conditions, including terms relating to the allocation of the proceeds from the sale, payment of the Company's debts, Piroozian's examination of the Company's books and records, and Piroozian's and Homapour's mutual release of certain legal claims relating to the Company. On December 21, 2018, Homapour rejected Piroozian's term sheet.

Piroozian then commenced this action against Homapour, seeking specific performance of his option to purchase the property pursuant to the agreement. Homapour moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, contending, among other things, that Piroozian failed to strictly adhere to the terms and conditions of the option to purchase the property by failing to exercise the option within the specified time frame for doing so, and by including terms and conditions in the term sheet that were not part of the agreement. By order entered January 8, 2020, the Supreme Court granted Homapour's motion. The court agreed with Homapour's contention that Piroozian's attempt to exercise his option was untimely. The court concluded that, because the judgment in the Queens action was entered upon a stipulation of settlement, the judgment was not appealable, and thus, no "available appellate remedies" existed, and therefore, Piroozian's option period began to run upon service of notice of entry of the judgment in that action in February 2018, and not upon Piroozian's withdrawal of his appeal in November 2018.

Piroozian appeals. We affirm, but on the alternate ground argued by Homapour in the Supreme Court, which was not addressed by the court in the order appealed from.

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...