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Chemtob v. II Padrone Construction II, LLC

Supreme Court of New York, Second Department

April 19, 2017

Marc Chemtob, appellant,
v.
II Padrone Construction II, LLC, et al., respondents, et al., defendants. Index No. 500323/15

          Kordas & Marinis, LLP, Long Island City, NY (Ross Kordas of counsel), for appellant.

          Cuomo, LLC, Mineola, NY (Oscar Michelen of counsel), for respondents.

          CHERYL E. CHAMBERS, J.P. L. PRISCILLA HALL JOSEPH J. MALTESE VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action for specific performance of a contract to purchase two parcels of real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated November 12, 2015, which granted the motion of the defendants Il Padrone Construction II, LLC, Amner, Ltd., and Nessim Tammam for summary judgment dismissing the complaint insofar as asserted against them and cancelling a notice of pendency filed in connection with the two parcels of real property, and denied his cross motion for summary judgment on the complaint and for a judgment declaring that a certain writing is a valid and enforceable contract.

         ORDERED that the order is affirmed, with costs.

         On December 29, 2014, the plaintiff and the defendant Nessim Tammam signed a writing whereby Tamman, as seller, and the plaintiff, as purchaser, agreed to the sale of two parcels of real property for the purchase price of $20, 000, 000, with a down payment of $2, 000, 000. The writing also contained the following notations: "on or about 60 Days Closing, " "As is - Condition, " "Violations: Subject to Monetary sums to be paid by Seller, " "all Cash, " and "Seller to pay broker under separate Contract." Thereafter, according to the plaintiff, Tammam attempted to "back out of the agreement" and renegotiate some of the terms. As a result, on January 9, 2015, the plaintiff commenced this action against Tammam and the defendants Il Padrone Construction II, LLC, and Amner, Ltd. (hereinafter collectively the Tammam defendants), among others, seeking specific performance of the writing. The Tammam defendants moved for summary judgment dismissing the complaint insofar as asserted against them and cancelling a notice of pendency filed in connection with the two parcels of real property. The plaintiff cross-moved for summary judgment on the complaint and for a judgment declaring that the writing is a valid and enforceable contract. The Supreme Court granted the defendants' motion and denied the plaintiff's cross motion. The plaintiff appeals.

         Contrary to the Tammam defendants' contention, the writing satisfies the statute of frauds, as it identifies the parties to the transaction, describes the properties to be sold with sufficient particularity, states the purchase price and the down payment required, and is subscribed by the party to be charged (see Simpson v 1147 Dean, LLC, 116 A.D.3d 835, 836; Triple A Supplies, Inc. v WPA Acquisition Corp., 95 A.D.3d 1301, 1302; Atai v Dogwood Realty of N.Y., Inc., 24 A.D.3d 695, 697; 160 Chambers St. Realty Corp. v Register of City of N.Y., 226 A.D.2d 606).

         However, the evidence submitted in support of the Tammam defendants' motion raised triable issues of fact regarding whether there was a meeting of the minds between the plaintiff and Tammam sufficient to give rise to a binding and enforceable contract (see Agosta v Fast Sys. Corp., 136 A.D.3d 694, 695).

         Nonetheless, the Tammam defendants satisfied their prima facie burden of establishing their entitlement to judgment as a matter of law. "Before specific performance of a contract for the sale of real property may be granted, a plaintiff must demonstrate that it substantially performed its contractual obligations and that it is ready, willing, and able to satisfy those obligations not yet performed, regardless of any alleged anticipatory breach by the defendant" (Johnson v Phelan, 281 A.D.2d 394, 395; see Bowen v Horgan, 259 NY 267; Dixon v Malouf, 70 A.D.3d 763, 763). "An anticipatory breach by the party from whom specific performance is sought excuses the party seeking specific performance from tendering performance, but not from the requirement that the party seeking specific performance establish that he or she was ready, willing, and able to perform" (Zeitoune v Cohen, 66 A.D.3d 889, 891; see 3M Holding Corp. v Wagner, 166 A.D.2d 580).

         The evidence submitted by the Tammam defendants in support of their motion established that the plaintiff never demanded performance of the writing on a specific date (see Weiss v Feldbrand, 50 A.D.3d 673, 674; Decatur [2004] Realty, LLC v Cruz, 30 A.D.3d 367; Cave v Kollar, 296 A.D.2d 370), and never tendered the $2, 000, 000 down payment. In addition, the Tammam defendants made a prima facie showing that the plaintiff was not ready, willing, and able to perform on the writing (see Sutphin Mgt. Corp. v REP 755 Real Estate, LLC, 73 A.D.3d 738, 741-742; Zeitoune v Cohen, 66 A.D.3d at 891; ADC Orange, Inc. v Coyote Acres, Inc., 20 A.D.3d 493, 495, mod 7 N.Y.3d 484; Ferrone v Tupper, 304 A.D.2d 524). In opposition, the plaintiff failed to raise a triable issue of fact. For the same reasons, the plaintiff failed to meet his prima facie burden on that branch of his cross motion which was for summary judgment on the complaint.

         Accordingly, the Supreme Court properly granted the Tammam defendants' motion for summary judgment and properly denied that branch of the plaintiff's cross motion which was for summary judgment on the complaint. Furthermore, inasmuch as the plaintiff did not seek declaratory relief in some form of pleading, that branch of his cross motion which was for a judgment declaring that the subject writing is a valid and enforceable contract was also properly denied (see CPLR 3017; Derfner Mgt. Inc. ...


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