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Nehmadi v. Davis

Supreme Court of New York, Second Department

May 23, 2012

Ben Nehmadi, appellant-respondent,
v.
E. William Davis, respondent-appellant. Index No. 18579/07

Goldberg Weprin Finkel Goldstein LLP, New York, N.Y. (Matthew Hearle of counsel), for appellant-respondent.

Adam Leitman Bailey, P.C., New York, N.Y. (Jeffrey R. Metz of counsel), for respondent-appellant.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action, inter alia, for specific performance of a contract for the sale of real property, (1) the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (McCarty III, J.), entered October 13, 2010, as denied his motion for leave to amend the complaint, among other things, to substitute a cause of action to recover damages for breach of contract in lieu of the cause of action for specific performance, and appointed a referee to hear and report on the items, if any, that must be resolved to achieve specific performance and complete the sale of the premises according to the terms of the contract of sale, and to then advise the Supreme Court when the items were resolved, so that the Supreme Court could thereafter direct the closing of the sale of the premises, and the defendant cross-appeals, as limited by his notice of cross appeal and brief, from stated portions of the same order entered October 13, 2010, which, inter alia, denied those branches of his motion which were for summary judgment dismissing the cause of action for specific performance and on his counterclaim declaring that the plaintiff is in default under the contract of sale and that he is entitled to retain the down payment, and (2) the plaintiff appeals from so much of an order of the same court entered December 17, 2010, as denied his motion to reject the referee's report and granted the defendant's cross motion to confirm the referee's report, to direct the parties to complete the closing of the sale of the premises within 30 days of the date of the order, and to vacate the notice of pendency filed against the subject property.

ORDERED that on the Court's own motion, the plaintiff's notice of appeal from so much of the order entered October 13, 2010, as appointed a referee to hear and report on the items, if any, that must be resolved to achieve specific performance and complete the sale of the premises according to the terms of the contract of sale, and to then advise the Supreme Court when the items were resolved, so that the Supreme Court could thereafter direct the closing of the sale of the premises, is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]; Civic Assn. at Roslyn Country Club v Levitt & Sons, 143 A.D.2d 385); and it is further,

ORDERED that the order entered October 13, 2010, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,

ORDERED that the order entered December 17, 2010, is affirmed insofar as appealed from, without costs or disbursements.

This case involves a contract to sell real property located in Old Westbury, owned by the defendant (hereinafter the seller), to the plaintiff (hereinafter the buyer). The facts of the case are set forth in a decision and order on a prior appeal (see Nehmadi v Davis, 63 A.D.3d 1125');">63 A.D.3d 1125), in which this Court reinstated the buyer's cause of action for specific performance upon a determination that the seller, on his previous summary judgment motion, failed to demonstrate that he effectively set a time-of-the-essence closing date for December 13, 2007.

While the prior appeal was pending, the seller moved to cancel the notice of pendency filed in connection with the premises based on the Supreme Court's dismissal of the cause of action for specific performance, and the buyer cross-moved to direct the seller to return the down payment. By order entered June 4, 2009, the Supreme Court granted the seller's motion, and directed the seller to submit, for settlement and signature, a proposed order cancelling the notice of pendency, with notice of settlement. The Supreme Court also granted the buyer's cross motion, and directed the seller to return the down payment within 30 days. Almost one month later, on June 30, 2009, this Court issued its decision and order determining the prior appeal and reinstating the specific performance cause of action. At that time, however, the Supreme Court's order entered June 4, 2009, was in effect, and remained in effect until the Supreme Court issued an order dated August 28, 2009, granting the seller's motion to vacate so much of the order entered June 4, 2009, as directed him to return the down payment.

In the meantime, approximately 10 days after this Court issued its decision and order dated June 30, 2009, the seller's attorney wrote to the buyer, by letter dated July 9, 2009, advising him that the closing was now scheduled for August 14, 2009, which the seller designated as "the Time of the Essence Closing Date, '" and that the buyer risked default by not appearing at the closing. Only the seller's attorney appeared at the scheduled August 14, 2009, closing.

In February 2010 the Supreme Court denied the seller's motion to direct the Nassau County Clerk to cancel the notice of pendency. That motion was denied, however, without prejudice to the seller's "right to move for summary judgment dismissing [the buyer's] cause of action for specific performance upon a showing of a properly noticed time of the essence closing, that [the seller] was ready, willing and able to close and that [the buyer] was in default."

In March 2010 the seller moved, inter alia, for summary judgment dismissing the cause of action for specific performance and on his counterclaim declaring that the buyer was in default and that he was entitled to retain the down payment. The buyer separately moved for leave to amend the complaint, among other things, to substitute a cause of action to recover damages for breach of contract in lieu of the cause of action for specific performance. Both motions included a general prayer for relief and, in opposing the buyer's motion to amend, the seller stated that if the Supreme Court denied his summary judgment motion, then he was ready to immediately close on the property pursuant to the contract of sale.

In an order entered October 13, 2010, the Supreme Court denied the parties' motions and appointed a referee to hear and report on "what, if any, items must be resolved to achieve specific performance and complete the sale of the Premises by the defendant to plaintiff according to the terms of the contract of sale between the parties.... [The referee] shall then report to this Court when such items have been resolved and the Court shall thereafter order the closing of the sale of the Premises." Following submissions by the parties to the referee and an inspection of the premises, the referee reported to the Supreme Court that there were no outstanding matters that needed to be resolved to achieve specific performance and complete the sale of the premises. In an order entered December 17, 2010, the Supreme Court denied the buyer's motion to reject the referee's report, granted the seller's cross motion to confirm the report, directed the parties to complete the closing within 30 days of the date of the order, and vacated the notice of pendency filed against the subject property.

The buyer now argues that the Supreme Court was without authority to appoint the referee, as neither party requested such relief in their respective ...


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