MOTION DATE May 22, 2013
ELLEN M. COIN A.J.S.C.
The following papers, numbered 1, were read on this motion for summary judgment
Notice of Motion-Affidavits-Exhibits..........1
Cross-Motion X No
This case arises out of an agreement for plaintiff's purchase of an interest in defendant Sara's New York Homestay, LLC (the "Company"). The essential facts are undisputed.
On or about January 24, 2011, plaintiff, as purchaser, entered into an agreement with defendants Bernard and Shirley Zagdanski, as sellers, and Patrick Zagdanski, to buy a 33% interest in the Company. The agreement contained a provision entitled "Option to Revoke: Escrow" (Ex A to Swergold Aff., ¶5):
Any party shall have the option to revoke this Agreement until September 30, 2011 (The "Revocation Date"). The party electing revocation shall notify the other party in writing of his or her intent to do so by FedEx or certified mail received before the Revocation Date. Until the Revocation Date, all sums paid by Buyer under Section 1.2, including principal and interest' paid on the Note, and under Section 1.4, shall be held in a non-interest bearing escrow account of the Escrow Agent. If either party elects to revoke this Agreement pursuant to this Section 1.5, then all sums paid under Section 1.2 and Section 1.4 shall be refunded to Buyer within ten business days of receipt of the notice to revoke. After the Revocation Date, all sums held by the Escrow Agent shall be transferred to Sellers.
On September 15, 2011, plaintiff and the Zagdanskis executed an amendment to the purchase agreement, which extended the revocation date in Section 1.5 to October 31, 2011. By amendment dated October 18, 2011, plaintiff and the Zagdanskis executed another amendment to the purchase agreement, further extending the revocation date to January 10, 2012. It is uncontested that on December 30, 2011, counsel for the Zagdanskis notified plaintiff by letter of their termination of the purchase agreement (Ex E to Swergold Aff.). Nor is it disputed that plaintiff received and cashed a check from the firm of the escrow agent in the amount of $273, 608.04 (Ex F to Swergold Aff.).
Plaintiff brings this action, alleging that she maintained a 33% interest in the Company from January 1, 2011 to December 31, 2011, and therefore was entitled to a percentage of all earnings, minus draws, for 2011. She asserts claims against all defendants, including the Company, for breach of contract (First Cause of Action), alleging waste of the Company's assets (Second Cause of Action), for unjust enrichment (Third Cause of Action), and ...