RECEIVED NYSCEF: 08/06/2013
DECISION & ORDER
SHIRLEY WERNER KORNREICH, J.
This is an action to enforce a letter of intent to purchase certain property located in Lower Manhattan. Defendant, Krasilovsky (Mercer) Family Limited Partnership (the Krasilovsky Partnership), moves to dismiss the complaint on the basis of documentary evidence and the Statute of Frauds and seeks cancellation of the notice of pendency filed against the property by plaintiff Imperium Capital, LLC (Imperium). Plaintiff opposes and cross-moves to add The Krasilovsky (Mercer) Realty Trust (the Realty Trust) as a defendant. Defendant opposes.
By an instrument dated May 15, 2000, Monroe and Harriet Krasilovsky created the Realty Trust for the sole benefit of the beneficiaries listed on the schedule attached thereto, to be amended from time to time (affidavit of Lois Krasilovsky, sworn to on April 30, 2012, exhibit E [Trust Instrument ] ¶1). Under the Trust Instrument, the trustee or trustees of the Realty Trust had no authority to deal with the trust estate except as specifically directed by the beneficiaries of the trust (Trust Instrument ¶ 3). The original trustees of the Realty Trust were Monroe and Harriet Krasilovsky (see id.). On December 13, 2006, however, Lois Krasilovsky, their daughter, was appointed as the trustee of the Realty Trust (affidavit "of Lois Krasilovsky, exhibit F [Certificate of Appointment]). It is unclear from the record who the present beneficiaries of the Realty Trust are.
Imperium is a sophisticated real estate investment and development company, which, since 2010, has acquired more than one million square feet of New York City property (affidavit of Matthew Avital, sworn to on May 29, 2013 ¶ 7). In February 2013, a real estate professional, Matthew Avital, came across information on the website PropertyShark.com relating to the Property (id. at ¶¶ 1, 9). PropertyShark listed the owner of the Property as "M&H Krasilovsky", and Avital subsequently obtained the contact information of Ms. Krasilovsky (id. at ¶9). After originally refusing, Ms. Krasilovsky told Avital that she was interested in selling the Property (id. at ¶¶ 11-12). On March 7, A vital sent Ms. Krasilovsky a written offer by Imperium, addressed to her personally, to purchase the Property for $3.75 million (id. at exhibit B)., That same day, Ms. Krasilovsky wrote to Avital explaining that the "offer will need to be made out to [the Krasilovsky Partnership]" (id. at exhibit C). In fact, the Property belonged to the Realty Trust, having been conveyed by Monroe and Harriet Krasilovsky through a quitclaim deed dated May 15, 2000 (affidavit of Lois Krasilovsky, exhibit A). This deed was recorded against the Property on the Automated City Register Information System (ACRIS), the online records maintained by the Office of the City Register for New York City, and those records reflect no subsequent conveyance. Imperium followed Ms. Krasilovsky's direction and addressed the offer letter to the Krasilovsky Partnership, and on March 9, she signed the letter on behalf of the Krasilovsky Partnership as seller (id. at ¶20, exhibit G [the LOI]).
The LOI, which is denominated as such, states that it "is a general description of the terms upon which Imperium ... is prepared to enter into negotiations ... to purchase [the Property]" (LOI 1). According to the LOI, Imperium was prepared to buy the Property for $3.75 million in cash (id.). However, the letter further states that "[i]t is understood that if the parties reach an agreement, a definitive Purchase Agreement... will be prepared and executed containing the terms outlined herein and such additional or other terms as may be mutually acceptable to the parties" (id.). The LOI provides for a 10% deposit to be put down "upon execution of a Purchase and Sale Agreement" (id.). Under the heading "Contingencies", the LOI states: "None. All due diligence will be performed during contract negotiations" (id.). The date of closing was to occur ten days "after signing of Purchase & Sale Agreement" (id.). The LOI notes that the offer was subject to the tenant's right of first refusal, obligates the parties to "maintain confidentiality with respect to this Letter of Intent and the following Agreement of Sale, " and states that it shall "bind and inure to the benefit of and be enforceable by Purchaser" (id. at 2). It contains no exclusivity provision and no representations or warranties.
On March 29, 2013, defendant notified Imperium that it would not be proceeding with the sale, as it had received a higher offer from another buyer (complaint ¶ 8). Indeed, by March 26, 2013, Ms. Krasilovsky, as trustee of the Realty Trust, had already signed a contract to sell the Property for $4.4 million to non-party Tribeca Equities LLC (Avital affidavit, exhibit I).Imperium responded by filing a notice of pendency and commencing this action on April 8, 2013, seeking a declaratory judgment that the LOI is a binding agreement and an order directing defendant to sell the Property to plaintiff pursuant to the LOI's terms.
On a motion to dismiss the court must accept as true the facts alleged in the complaint as well as all reasonable inferences that may be gleaned from those facts (Amaro v Gani Realty Corp., 60 N.Y.3d 491 ; Skillgames, L.L.C. v Brody, 1 A.D.3d 247, 250 [1st Dept 2003] [citing McGill v Parker, 179 A.D.2d 98, 105 (1992)]; Mazzai v Kyriacou, 98 A.D.3d 1088, 1090 (2d Dept 2012); see also Cron v Harago Fabrics, 91 N.Y.2d 362, 366 ). The court is not permitted to assess the merits of the complaint or any of its factual allegations, but may only determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action (Skillgames, id. [citing Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 (1977)]). Deficiencies in the complaint may be remedied by affidavits submitted by the plaintiff (Amaro, 60 N.Y.3d at 491). "However, factual allegations that do not state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or clearly contradicted by documentary evidence are not entitled to such consideration." (Skillgames, 1, A.D.3d at 250 [citing Caniglia v Chicago Tribune-New York News Syndicate, 204 A.D.2d 233 (1st Dept 1994)]).
A. Statute of Frauds
Under the Statute of Frauds, an agreement to sell real property must be memorialized by a written contract, "subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing" (General Obligations Law § 5-703 ). Defendant maintains that the LOI is void as a contract of sale because the owner of the Property is the Realty Trust, rather than the entity that signed the LOI, the defendant Krasilovsky Partnership. It further contends that . dismissal is required since there is no writing authorizing Lois ...