Opinion
10808 10808A Index 653083/14
01-21-2020
Philippe BOCCARA, Plaintiff–Appellant, v. Joan S. BEINART as Trustee of the Jooan S. Beinart Personal Qualified Trust, et al., Defendants–Respondents.
Katz Melinger PLLC, New York (Kenneth J. Katz of counsel), for appellant. Jonathan Fisher, New York, for respondents.
Katz Melinger PLLC, New York (Kenneth J. Katz of counsel), for appellant.
Jonathan Fisher, New York, for respondents.
Manzanet–Daniels, J.P., Gesmer, Oing, Moulton, Gonza´lez, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about March 22, 2017, which denied plaintiff prospective purchaser's motion for summary judgment on his claims for, inter alia, breach of contract and a return of his $200,000 down payment, unanimously affirmed, without costs. Order, same court and Justice, entered on or about August 29, 2018, which, insofar as appealed from, denied plaintiff's motion to renew, unanimously affirmed, without costs.
Plaintiff established his prima facie entitlement to judgment as a matter of law. The cooperative board refused to approve plaintiff's purchase of the shares to the subject apartment, and the parties' contract allowed in such instances for plaintiff to cancel the contract and be refunded his down payment. In opposition, defendants raised triable issues as to whether the board's refusal to approve the sale was due to bad faith on the part of plaintiff. Plaintiff's argument that the motion court should not have considered the affidavit of defendant Jonathan Fisher because it was not notarized is not preserved, and we decline to review it (see Matter of Brodsky v. New York City Campaign Fin. Bd. , 107 A.D.3d 544, 545, 971 N.Y.S.2d 265 [1st Dept. 2013] ; see also Stewart v. Goldstein , 175 A.D.3d 1214, 1215, 109 N.Y.S.3d 286 [1st Dept. 2019] ). The motion court properly denied the motion to renew. Plaintiff did not explain the failure to offer the purportedly new evidence on his initial motion (see Estate of Brown v. Pullman Group , 60 A.D.3d 481, 875 N.Y.S.2d 460 [1st Dept. 2009], lv dismissed in part, denied in part 13 N.Y.3d 789, 887 N.Y.S.2d 538, 916 N.E.2d 433 [2009] ).