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Liberty Equity Restoration Corp. v. Yun

Supreme Court of New York, Second Department

April 4, 2018

Liberty Equity Restoration Corporation, plaintiff-respondent,
v.
Maeng-Soon Yun, et al., appellants; Marissa LoPriore, as administrator of the estate of Frank LoPriore, et al., third-party defendants-respondents. Index No. 70040/12

         D54999 L/hu

          Argued - November 9, 2017

          Tilem & Associates, P.C., White Plains, NY (Peter H. Tilem of counsel), for appellants.

          John A. Tartaglia III, Port Chester, NY, for plaintiff-respondent and third-party defendants-respondents.

          MARK C. DILLON, J.P. COLLEEN D. DUFFY FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         In an action, inter alia, for specific performance of a contract for the sale of real property, the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Orazio R. Bellantoni, J.), dated December 23, 2015, as granted that branch of the plaintiffs motion which was for summary judgment on the complaint and, in effect, denied those branches of their cross motion which were for summary judgment on their third-party cause of action to recover the value of the use and occupancy of the subject premises for a period beginning August 1, 2012, and for summary judgment on the issue of damages owed to them by the plaintiff and the third-party defendants.

         ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the plaintiffs motion which was for summary judgment on the complaint, and substituting therefor a provision denying that branch of the motion, (2) by adding thereto a provision searching the record and awarding the defendants third-party plaintiffs summary judgment dismissing the complaint, and (3) by deleting the provision thereof, in effect, denying that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment on their third-party cause of action to recover the value of the use and occupancy of the subject premises for a period beginning August 1, 2012, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendants third-party plaintiffs payable by the respondents, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings to determine the amount of damages owed by the plaintiff and the third-party defendants to the defendants third-party plaintiffs in accordance herewith.

         In 2006, the defendants third-party plaintiffs, Maeng-Soon Yun and Kil-Chung Yun (hereinafter together the Yuns), who are husband and wife, purchased, using financing, a residential property located in Bedford. On August 1, 2011, Kil-Chung Yun entered into a lease agreement with the plaintiff, Liberty Equity Restoration Corporation (hereinafter Liberty Equity), granting Liberty Equity the right, as tenant, to occupy the subject premises for a one-year term ending on July 31, 2012. The amount of the monthly rent in the form lease was left blank. The third-party defendant Frank LoPriore was the president and principal of Liberty Equity. On March 28, 2012, Maeng-Soon Yun entered into a contract to sell the property to Liberty Equity for the sum of $25, 000. On April 19, 2012, Maeng-Soon Yun executed a power of attorney authorizing Frank LoPriore to act as her agent with respect to real estate transactions, as well as claims and litigation. By letter dated July 30, 2012, the Yuns gave notice to Liberty Equity that they were cancelling the contract of sale, and requested that Liberty Equity, Frank LoPriore, and all affiliated persons vacate the premises immediately.

         On November 29, 2012, Liberty Equity commenced this action in the Supreme Court, Westchester County, against the Yuns for specific performance of the contract of sale or, in the alternative, to recover damages for breach of the contract of sale. The Yuns answered and asserted counterclaims, inter alia, to recover the value of Liberty Equity's use and occupancy of the premises from the expiration of the lease until the conclusion of the matter. In addition, the Yuns commenced a third-party action against Frank LoPriore and Mary Ann LoPriore, inter alia, to recover the value of their use and occupancy of the premises. The Yuns also commenced a holdover proceeding against Liberty Equity in the North Castle Justice Court. The proceeding was removed from the North Castle Justice Court and consolidated with the action pending in the Supreme Court.

         The Yuns moved against Liberty Equity, Frank LoPriore, and Mary Ann LoPriore for summary judgment awarding them possession of the subject premises and for summary judgment awarding them the value of the use and occupancy of the premises as of August 1, 2012. In an order dated August 28, 2013, the Supreme Court denied the Yuns' motion. On appeal, in a decision and order dated June 10, 2015, this Court modified the order dated August 28, 2013, concluding that the Yuns were entitled to summary judgment awarding them possession of the premises and the value of the use and occupancy of the premises as of August 1, 2012, as against Liberty Equity (see Liberty Equity Restoration Corp. v Maeng-Soon Yun, 129 A.D.3d 785, 786). However, concluding that issues of fact existed "as to the value of the use and occupancy of the subj ect premises, '' this Court remitted the matter "to the Supreme Court, Westchester County, to determine the amount of damages owed to [the Yuns] by [Liberty Equity]" (id. at 786-787). Upon remittitur, the Supreme Court did not conduct proceedings to determine the amount of damages owed to the Yuns by Liberty Equity.

         By notice of motion dated September 3, 2015, Liberty Equity moved, inter alia, for summary judgment on its complaint seeking specific performance of the contract of sale or, in the alternative, damages for breach of contract. The Yuns opposed the motion and cross-moved, inter alia, for summary judgment on their third-party cause of action against Frank LoPriore and Mary Ann LoPriore to recover the value of their use and occupancy of the premises. The Yuns also cross-moved for summary judgment on the issue of damages against Liberty Equity, Frank LoPriore, and Mary Ann LoPriore, contending that they were entitled to damages in the amount of $7, 200 per month. In an order dated December 23, 2015, the Supreme Court, inter alia, granted summary judgment to Liberty Equity on its causes of action for specific performance and alleging breach of contract. The court also, in effect, denied the Yuns' cross motion. The Yuns appeal. Frank LoPriore died while this appeal was pending, and Marissa LoPriore, as administrator of his estate, was substituted in his place.

         Liberty Equity failed to establish its prima facie entitlement to judgment as a matter of law on its causes of action for specific performance and alleging breach of contract. The essential elements of a breach of contract cause of action are "the existence of a contract, the plaintiffs performance under the contract, the defendant's breach of that contract, and resulting damages" (JP Morgan Chase v J.H. Elec. of N.Y., Inc., 69 A.D.3d 802, 803; see Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 A.D.3d 122, 127). "To prevail on a cause of action for specific performance of a contract for the sale of real property, a . . . purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law" (1107 Putnam, LLC v Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., 152 A.D.3d 474, 475; see ADC Orange, Inc. v Coyote Acres, Inc., 7NY3d484, 490; Cipriano v Glen Cove Lodge #1458, B.P.O.E., 1 N.Y.3d 53, 62).

         Here, the evidence submitted by Liberty Equity in support of its motion established that Liberty Equity failed to perform its obligations under the parties' agreements. During his deposition, Frank LoPriore acknowledged that there were oral agreements between the parties that governed the contract of sale, the lease, and the power of attorney, and that either he, an entity he controlled, or an investor was required to pay off the Yuns' mortgage as part of the transaction. According to Frank LoPriore, the Yuns' mortgage was going to be ''resolved" under the parties' agreement such that the Yuns would not be responsible for paying the mortgage after the closing. However, Frank LoPriore testified that he was unable to arrange for the payoff of the mortgage. Frank LoPriore also testified that the Yuns gave him a power of attorney for the purpose of negotiating with the holder of the Yuns' mortgage, but he never successfully made contact with the mortgage holder. Under these circumstances, parol evidence and the parties' course of dealing were admissible to supplement and interpret the terms of the parties' agreements (see Hicks v Bush, 10 N.Y.2d 488, 491-494; see also Foot Locker, Inc. v Omni Funding Corp. of Am., 78 A.D.3d 513, 515). Since Liberty Equity failed to establish that it performed its obligations under the parties' agreements, that branch of its motion which was for summary judgment on the complaint alleging breach of contract and seeking specific performance should have been denied, regardless of the sufficiency of the Yuns' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

         Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR3212[b]; Arista Real Estate Holdings, Inc. v Kemalettin,133 A.D.3d 696, 697-698). Since Frank LoPriore's deposition testimony conclusively establishes that Liberty Equity failed to perform its obligations under the parties' agreements, we search the record and award ...


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