- October 23, 2017
E. Wilson, Brooklyn, NY (Frank R. Seddio of counsel), for
Cashman LLP, New York, NY (Eric D. Sherman and Benjamin S.
Akley of counsel), for respondents.
C. DILLON, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
from an order of the Supreme Court, Kings County (David B.
Vaughan, J.), dated July 29, 2015. The order, insofar as
appealed from, granted those branches of the defendants'
motion which were to dismiss the amended complaint pursuant
to CPLR 3211(a)(1) and (7) and cancel the notices of
that the order is reversed insofar as appealed from, on the
law, with costs, and those branches of the defendants'
motion which were to dismiss the amended complaint pursuant
to CPLR 3211(a)(1) and (7) and cancel the notices of pendency
defendants, as sellers, and the plaintiffs assignor, as
purchaser, entered into a contract dated March 31, 2014, for
the sale of three contiguous parcels of property in Brooklyn.
The purchase price was in excess of $4 million, and the
purchaser made a down payment in the sum of $575, 489, with
$3, 800, 211 payable at the closing. The contract provided
that the closing was to occur on or before April 30, 2014,
time being of the essence. On April 23, 2014, the plaintiffs
attorney asked for an adjournment of the closing until May
2014, because the plaintiff had received a mortgage
commitment and the lender still had to schedule an appraisal.
The defendants' attorney did not respond to the request.
Thereafter, on April 29, 2014, the parties communicated with
each other with respect to the release of escrow funds, and
no mention was made of the request for an adjournment.
April 30, 2014, the defendants' attorney, in the presence
of a stenographer and notary public, noted that he had in his
possession deeds to the subject properties, real estate
transfer tax returns, and nonforeign status certifications,
signed by the defendants, and further noted that the
plaintiff had not appeared for a closing. The defendants
thereafter terminated the contract due to the plaintiff's
failure to appear at the time-of-the-essence closing, and
retained the down payment.
plaintiff commenced this action seeking specific performance
of the contract or, in the alternative, a return of the down
payment, and filed notices of pendency with respect to the
subject properties. The amended complaint alleged that on
April 23, 2014, the plaintiff requested an adjournment of the
time-of-the-essence closing date of April 30, 2014, and
received no response. The amended complaint further alleged
that the defendants did not communicate with the plaintiff
about securing the documents necessary for them to close. The
plaintiff alleged that, consistent with the parties'
prior dealings, which included multiple adjournments of the
closing dates, the plaintiff had a good faith belief that the
defendants "would not proceed with the closing on April
plaintiff further alleged that title reports for the subject
properties revealed outstanding mortgages in the sums of $11,
265, 000, which far exceeded the $3, 800, 211 payable at the
closing, and the defendants were "required at a closing
to produce a pay-off letter for these mortgages and either a
satisfaction, discharge or release from the holder, or good
funds payable at the closing, to a title company in escrow to
pay off these mortgages, " but failed to determine the
payoff amount prior to the scheduled closing or engage in any
other communications to comply with those provisions. The
plaintiff sought specific performance of the contract or, in
the alternative, return of the $575, 489 down payment.
defendants made a pre-answer motion, inter alia, to dismiss
the amended complaint pursuant to CPLR 3211(a)(1) and (7). On
a pre-answer motion to dismiss pursuant to CPLR 3211(a)(1)
and (7), the allegations in the amended complaint must be
accepted as true, and those allegations,
''supplemented by a plaintiffs additional
submissions, if any, must be given their most favorable
intendment" (Arrington v New York Times Co., 55
N.Y.2d 433, 442; see Mihlovan v Grozavu, 72 N.Y.2d
506). "Where evidentiary material is submitted and
considered on a motion to dismiss a complaint pursuant to
CPLR 3211(a)(7), and the motion is not converted into one for
summary judgment, the question becomes whether the plaintiff
has a cause of action, not whether the plaintiff has stated
one and, unless it has been shown that a material fact as
claimed by the plaintiff to be one is not a fact at all and
unless it can be said that no significant dispute exists
regarding it, dismissal should not eventuate" (Agai
v Liberty Mut. Agency Corp., 118 A.D.3d 830, 832, citing
Guggenheimer v Ginzburg, 43 N.Y.2d 268, 274-275).
Relief pursuant CPLR 3211(a)(1) requires documentary evidence
which utterly refutes the plaintiffs 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; Endless Ocean, LLC v Twomey, Latham, Shea,
Kelley, Dubin & Quartararo, 113 A.D.3d 587, 588).
Supreme Court granted those branches of the defendants'
motion, concluding that (1) the plaintiff did not appear, and
did not have funds to close, on April 30, 2014, the
time-of-the-essence closing date, (2) the plaintiffs argument
that the defendants were not ready to close on the law day is
without merit, because the plaintiff was required, pursuant
to paragraph 6(a)(i) of the contract, to raise any title
objections prior to the closing, which it did not do. The
court further found that the plaintiff, as purchaser, was
required to tender performance and demand good title before
it could complain that the defendants were not ready or could
not convey good title. The court found that ''[i]n
light of the documentary evidence that plaintiff was not
ready, willing and able to close, that it failed to appear at
the closing, and that it therefore defaulted under the
Purchase Agreement, plaintiff is not entitled to either
specific performance or the return of its deposit.''
The plaintiff appeals.
order to retain the down payment, the defendants were
required to prove that they were ready, willing, and able to
perform on the law day (see Imperatore v 329 Menahan St.,
LLC,130 A.D.3d 784, 785; Matter of Hicks, 72
A.D.3d 1085; Pinhas v Comperchio,50 A.D.3d 1117).
There are exceptions to this rule, such as where the
purchaser seeks to cancel the contract without giving the
seller an opportunity to cure any defects (see Martocci v
Schneider,119 A.D.3d 746, 747), but that was not the
case here. In order to obtain a return of the down payment,
the purchaser is not ...