Opinion
Index No. 161566/2019
01-12-2024
ZABLINK, LLC, Plaintiff, v. 5178 HOLDINGS LLC, Defendant
Unpublished Opinion
PRESENT: HON. PAULA. GOETZ Justice.
DECISION + ORDER ON MOTION
PAUL A. GOETZ, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 195, 196, 197, 198, 199, 200, 201,202, 203, 204, 205, 206, 207, 208, 209, 210, 211,212, 213, 214, 215, 216, 217, 218, 264, 265, 266, 267, 268, 269, 270, 271,272, 273, 274, 275, 276, 277, 278, 279, 280, 281,282, 283, 284, 285, 286, 287, 288, 289, 290, 291,292, 293, 294, 295 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.
The following e-filed documents, listed by NYSCEF document number (Motion 008) 219, 220, 221,222, 223, 224, 225, 226, 227, 228, 229, 230, 231,232, 233, 234, 235, 236, 237, 238, 239, 240, 241,242, 243, 244, 245, 246, 247, 248, 249, 250, 251,252, 253, 254, 255, 256, 257, 258, 259, 260, 261,262, 263, 296, 297, 298, 299, 300 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.
The following e-filed documents, listed by NYSCEF document number (Motion 009) 301,302, 303, 309, 311,312, 313, 314, 315, 316, 317, 318, 322 were read on this motion to/for STRIKE PLEADINGS.
In this breach of contract action following an aborted real estate transaction plaintiff moves for summary judgement (Mot Seq No 007) on four of its causes of action seeking recovery of its down payment (NYSCEF Doc No 1. Counts I, II, and III in the complaint are for breach of contract and Count V is for negligent misrepresentation (NYSCEF Doc No 1). Additionally, plaintiff seeks summary judgement dismissing defendant's counterclaims for breach of contract seeking a judgement that defendant is entitled to retain the down payment.
Defendant also moves for summary judgment (Mot Seq No 008) seeking the dismissal of plaintiffs' claims and for the relief sought in their counterclaims (NYSCEF Doc No 248).
Plaintiff also moves to strike defendant's reply memorandum in further support of its motion for summary judgement (Mot Seq No 009) or alternatively its entire motion for summary judgement as untimely.
BACKGROUND
The case involves the sale of a penthouse condominium unit located at 5 East 17th Street, New York, New York (the "Unit") (NYSCEF Doc No 196). Lee Linden, the sole member of plaintiff became aware that the Unit was for sale and after visiting it and negotiating a price the parties entered into a contract of sale (the "Contract") on May 19, 2019 (id. at 7). The contract provides that plaintiff would pay $ 14,075,000 for the Unit and would transfer $1,407,500 to defendant as a down payment to be held in escrow (id.).
On June 3, 2019, after staging furniture was removed, Linden and his mother, Paula Linden performed a walkthrough of the Unit. The following day Linden sent an email to Keith Goggin (a member of defendant), and Eric Capolino (an owner of the contracting company who worked on the Unit), in which he expressed concern regarding the wood flooring in the Unit (NYSCEF Doc No 266). In the e-mail Linden stated that "To our surprise, once the rugs and furniture were removed it's now abundantly clear that the wood flooring has some major issues. About 30% of the planks have clear, visible splits" (id.). The parties were unable to agree over how to address plaintiffs concerns about the floors.
Defendant sent a contractor, Vincent Devaney, to inspect and perform minor repairs on the split planks (NYSCEF Doc No 294). However, after consulting with its own flooring expert plaintiff notified defendant that it believed the only way the floor could be repaired would be by totally replacing it (NYSCEF Doc No 209). Communications between the parties stalled until plaintiff in an email to Mr. Goggin on June 17, 2019 stated that due to defendant being unwilling to replace the floor, they should terminate the contract and return the down payment to plaintiff (NYSCEF Doc No 214).
In addition to the flooring issue plaintiff expressed concern about Unit's private roof deck. After signing the contract plaintiff received an email from defendant with an attached roof plan for the property (NYSCEF Doc No 211). Plaintiff responded with an e-mail with alleging that the plans included with the contract were changed (NYSCEF Doc No 212). The revised plans include an egress path to be used in case of emergencies from the public area of the roof through plaintiffs private section (NYSCEF Doc No 211). Plaintiff requested assurances on May 31, 2019 from defendant that the egress would be used only for emergency purposes but the record does not reveal a response by defendant.
Defendant has refused to return the downpayment viewing the demand for a floor replacement an extracontractual demand (NYSCEF Doc No 294). On November 27, 2019 plaintiff filed this lawsuit alleging three counts of breach of contract, one count of foreclosure, and one count of negligent misrepresentation (NYSCEF Doc No 1). Defendant in its answer alleged two counterclaims for breach of contract seeking a judgement declaring that it is entitled to retain the downpayment.
DISCUSSION
Striking c f Reply and Motion for Summary Judgement
Plaintiff moves (Mot Seq No 009) to strike defendant's reply memorandum of law in further support of its motion for summary judgement as untimely. Alternatively, plaintiff requests that the defendant's motion for summary judgement be denied as untimely.
Plaintiff filed the Note of Issue on July 31, 2023 (NYSCEF Doc No 193). The May 25, 2023 Status Conference Order stated that "All dispositive motions must be filed within 60 days of the note of issue" (NYSCEF Doc No 192). Any motion for summary judgement in this case should have been filed by September 29, 2023. However, defendant filed its motion for summary judgement on September 30, 2023. Defendant provided a reasonable excuse for the delay due to extreme weather conditions and that defendant's counsels' firm were experiencing server issues on that day. Defendant's motion for summary judgement was filed only 6 minutes past the deadline of September 29, 2023. Defendant has provided good cause for this de minimis delay.
Plaintiff also argues that defendant's reply memorandum should not be considered because it was filed on the return date of its motion. CPLR § 2214(b) requires that reply papers be served at least one day before the return date.
Plaintiff moved to strike defendant's reply memorandum from its summary judgement motion in Motion Sequence 009. CPLR § 2101(f) states "(f) Defects in form; waiver. A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections." The appropriate procedure would have been to argue that Motion Sequence 008 was untimely in plaintiffs opposition. Alternatively, plaintiff could have rejected the reply papers as untimely.
Pursuant to CPLR § 2004:
Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.NYCRR § 202.8(d) provides that "Motion papers received by the clerk of the court on or before the return date shall be deemed submitted as of the return date."
Accordingly, plaintiffs motion to not consider defendant's reply memorandum will be denied because defendant's reply was filed by the return date and plaintiff has not suffered any prejudice because of this filing its motion to strike the defendant's reply is denied. Additionally because defendant has provided good cause for its de minimis delay in filing Mot Seq 008 plaintiffs motion to deny defendant's motion for summary judgement as untimely will be denied.
Summary Judgement Standard
It is well settled that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Pullman v Silverman, 28 N.Y.3d 1060, 1062 [2016], quoting Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). "Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to raise material issues of fact which require a trial of the action" (Cabrera v Rodriguez, 72 A.D.3d 553, 553-54 [1st Dept 2010]). "The court's function on a motion for summary judgment is merely to determine if any triable issues exist, not to determine the merits of any such issues or to assess credibility" (Meridian Mgt. Corp, v Cristi Cleaning Serv. Corp., 70 A.D.3d 508, 510-11 [1st Dept 2010] [internal citations omitted]). The evidence presented in a summary judgment motion must be examined "in the light most favorable to the non-moving party" (Schmidt v One New York Plaza Co. LLC, 153 A.D.3d 427, 428 [2017], quoting Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339 [2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (id.).
Breach cf Contract
To establish a prima facie breach of contract claim a plaintiff must plead and prove "(1) a contract exists; (2) plaintiff performed in accordance with the contract; (3) defendant breached its contractual obligations; and (4) defendant's breach resulted in damages" (34-06 73, LLC v Seneca Ins. Co., 39 N.Y.3d 44, 52 [2022]). Here, the existence of the contract is not in dispute. Additionally, since the security deposit has been retained there is a showing of damages if a material breach of the contract is established.
In order to succeed on a claim seeking the return of a down payment on a contract a plaintiff-buyer must "demonstrate that it was ready, willing and able to fulfill its contractual obligations at closing" (3801 Review Realty LLC v Review Really Co. LLC, 111 A.D.3d 509, 509 [1st Dept 2013]). For a defendant-seller to be entitled to keep a down payment it must establish that it was "ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for [its] failure to close" (Martocci v Schneider, 119 A.D.3d 746, 749 [2d Dept 2014]).
Here, there are two of fact that will determine whether either party is entitled to retain the security deposit. First, whether the conditions of the floor and defendant's refusal to completely replace it represents a material breach of the contract. And second, whether the parties were "ready, willing, and able" to perform their obligations at the closing date.
Plaintiffs three breach of contract claims all relate to the allegedly damaged floor, each putting forward a separate theory as to why defendant allegedly breached the contract.
Breach cf Contract I
In plaintiffs first claim for breach of contract it alleges that "Seller breached the Contract by failing to refund the Downpayment after failing to repair the floor damage to the Property and by further ignoring the Buyer's requests to declare the Contract cancelled and receive a refund of its Downpayment" (NYSCEF Doc No 1 ¶ 52). Plaintiff cites to paragraph 19(a)(i) of the contract which states:
19. The risk of loss or damage to the Unit or the personal property included in this sale, by fire or other casualty, until the earlier of the Closing or possession of the Unit, by Purchaser, is assumed by Seller ... if Seller either does not elect to do so or, having elected to make such repairs and restorations, fails to complete the same on or before said adjourned date for the Closing, Purchaser shall have the following options:
(i) To declare this Contract cancelled and of no further force or effect and receive a refund of the Downpayment in which event neither party shall thereafter have any further rights against, or obligations or liabilities to, the other by reason of this Contract.
Defendant in response to the allegations that it is responsible for the damaged floors, relies on the "as is" clause found in paragraph 10 of the contract which states:
10. Purchaser has examined and is satisfied with the Declaration, By-Laws and rules and regulations of the Condominium as amended., or has waived the examination thereof Purchaser has inspected the Unit, its fixtures, appliances and equipment and the personal property, if any, included in this sale, as well as the Common Elements of the Condominium, and knows the condition thereof and, subject to Subpart. 5(f), agrees to accept the same "as is," i.e., in the condition they are in on the date hereof, subject to normal use, wear and tear between the date hereof and the Closing.
"[Structural defects ... which exist[] at the time [a] contract [is] executed, are covered under the 'as is' clauses in the contract and rider, even if they were unknown to the parties at that time" (Hu v Ltjf 158 A.D.3d 419, 420 [1st Dept 2018]). Here, the language of paragraph 19, read together with paragraph 10 bind defendant to only repair damage which occurred between the time of the signing of the contract and the closing date. Paragraph 19 refers to damage caused by "fire or other casualty".
Defendant argues that that paragraph 19 of the contract cannot be relied on because the provision only allows for cancellation of the contract in the event of loss or damage caused by "fire or other casualty" (NYSCEF Doc No 248). They note paragraph 19(a)(ii) which refers to proceeds collected from hazard insurance to argue that the damage to the floorboards should not be included here.
Courts have interpreted "other casualty" to include "events resulting from human error" (45 Broadway Owner LLC v NY SA-1 LA Pension Tr. Fund, 107 A.D.3d 629, 631 [1st Dept 2013]). However, "other casualty" does imply a "sudden and unexpected [event]" akin to a fire (id. at 632). Therefore, paragraphs 10 and 19 read together only bind the defendant to repair damage caused by a sudden event in between the signing of the contract and the Closing Date.
Here, plaintiff does not provide evidence for any "casualty" which may have caused the damaged floorboards after the signing of the contract. The removal of the staging furniture cannot be considered a "casualty" since it is not a sudden or unexpected event in the same nature as a fire or a flood. However, defendant also does not submit any evidence showing that no such casualty occurred between the signing of the contract and the date plaintiff requested a repair of the damaged floor. Therefore, an issue of fact exists for plaintiff s theory of breach under paragraph 19. Accordingly, summary judgement on plaintiff s first cause of action will be denied for both parties.
Breach cf Contract II
Plaintiffs second claim for breach of contract states that "The Seller has breached the Contract by failing to repair the floor damage that was discovered after the Seller removed staging furniture and rugs from the Property." (NYSCEF Doc No 1 ¶ 56). Plaintiff cites to paragraph 11 of the contract which states:
11. Possession: Seller shall, at or prior to the Closing, remove from the Unit all furniture, furnishings mid other personal property not included in this sale, shall repair any damage caused by such removal, and shall deliver exclusive possession of the Unit at the Closing, vacant, professionally-dean and free of tenancies or other rights of use or possession.
To be entitled to summary judgement under paragraph 11 plaintiff needs to establish that the damaged wood floorboards were caused by the removal of the furniture and that defendant refused to perform repairs.
Plaintiff relies on testimony from Vincent Devaney who stated that he visited the property months prior to the removal of the furniture and did not observe any cracks in the wood, but after the furniture was removed, he did observe "checks" in the wood (Devaney EBT; NYSCEF Doc No 256 at 25:14-25 &49:18-50:16). However, Devaney also testified that he did not believe the removal of the furniture caused the checks in the wood but rather speculated that the relative humidity in the Unit could have caused stress to the wood (id. at 27:16 - 28:22).
Therefore, plaintiff has failed to provide sufficient evidence that the damaged floorboards were caused by the removal of the staging furniture. However, defendant also has not provided sufficient evidence that the damage was not caused by the removal of the furniture. Accordingly, an issue of fact exists and both parties motion for summary judgment must be denied on plaintiffs second cause of action.
Breach cf Contract III
Plaintiffs third breach of contract claim relies on paragraph 34 of the rider to the contract which supplements paragraph 5 of the contract (NYSCEF Doc No 1 ¶ 59-61). Paragraph 34(xii) of the rider of the contract states:
(xii) To Seller's actual knowledge, there is no damage (other than reasonable wear and tear) to any part of the Unit which is covered,
hidden, concealed or which it was impracticable for Purchaser to view or inspect prior to the date hereof In the event any such damage is revealed prior to Closing, Seller agrees to repair the same prior to Closing or will grant a reasonable credit to Purchaser at Closing, or will establish a reasonable escrow at Closing to cover the cost of any necessary repair or replacement. Seller also represents and warrants that there is no damage to the Unit caused by any fire, destruction or any other event of casualty.
Plaintiff alleges that the broken floorboards were largely concealed by rugs and staging furniture which did not allow for full inspection of the entire Unit. Plaintiff argues that since this alleged damage was impracticable to inspect, the "as is" clause in paragraph 10 does not apply and instead paragraph 34 of the rider applies which would obligate the defendant to either repair the damage or grant a credit at closing. Plaintiff further avers that defendant refused to repair the floors when it indicated it would not fully replace the floors and subsequently stopped responding to plaintiffs emails.
Defendant argues that plaintiff has overstated the amount of damage to the floors, that the damage was not fully concealed by rugs and furniture, and that defendant agreed to repair the floors, but this solution was rejected by the plaintiff. Furthermore, defendant notes that after plaintiff had an engineer inspect the unit prior to the signing of the contract who did not inspect concealed areas, plaintiff negotiated in paragraph 42 of the rider to the contract, that defendant would "fix cracked flooring near the stairs" (NYSCEF Doc No 228). Defendant argues that since plaintiff was aware of this portion of cracked flooring, and had received a recommendation in the engineer's inspection report to conduct a further inspection of floors below the furniture, that by moving forward with the contract without doing so, plaintiff accepted the Unit "as is". (NYSCEF Doc No 248; see also NYSCEF Doc No 257 at 81 ["For your protection, all currently inaccessible areas of the flooring should be made accessible and reexamined as part of the pre Closing inspection"]).
A breach of contract claim under paragraph 34 of the rider differs from the other two breach of contract claims in that it would cover damage that existed prior to the signing of the contract so long as it was concealed and impracticable for plaintiff to have inspected and discovered prior to the signing of the contract.
Defendant avers that plaintiffs request to replace the floor was an extracontractual demand requested for aesthetic purposes as indicated by an estimate from a flooring contractor contacted by plaintiff which includes a different color stain than the one in the Unit (NYSCEF Doc No 237). Finally, defendant notes that they learned that plaintiff made an offer to purchase a different residential property days after raising its concern regarding the floors to defendant. Defendant argues that this indicates that plaintiff did not plan on closing and requested termination "under the guise of issues with the wood flooring" (NYSCEF Doc No. 248). '
There are multiple issues of fact on plaintiffs third breach of contract claim. First, there is an issue of fact as to how much of the floor is damaged. Plaintiff submitted an affidavit from Linden stating that over 30 percent of the floorboards have "large splits and cracks" (Linden Affidavit, NYSCEF Doc No 278 at 49 &61). Defendant submitted an affidavit stating that there were "hairline checks" on "less than even half a percent" of the floorboards (Devaney Affidavit, NYSCEF Doc No 256 at 25-27). The extent of damage to the floor will inform whether the proposed solutions by each party were a reasonable means of repair. Finally, there is an issue of fact regarding the location of the alleged damaged floorboards. If they were in plain sight and not concealed by furniture and rugs then they will be subject to the "as is" clause in paragraph 10 of the contract and cannot serve as basis for plaintiffs breach claim. However, if they were hidden, and impractical to inspect, then paragraph 34 of the rider would control and could serve as a breach of the contract.
Accordingly, both plaintiff and defendant's motion for summary judgement for the third breach of contract claim must be denied as there are unresolved issues of fact.
Negligent Misrepresentation
Plaintiff also moves for summary judgement on its fifth cause of action for negligent misrepresentation. Plaintiff argues that defendant misrepresented facts about the "private" roof deck which is a part of the Unit. Plaintiff argues that he relied on defendant's misrepresentation that the roof deck was private. However, after the signing of the contract, plaintiff was informed by defendant that Department of Building rules require an egress be available across the Unit's private deck so that other residents have access to the fire escape located at the front of the building. Plaintiff argues that it relied on this misrepresentation when it entered into the contract and thus relieves plaintiff of its obligation to perform under the contract.
The elements of a claim for negligent misrepresentation are: "(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information" (MatlinPutter son Al A Holdings LLC v Fed. Express Corp., 87 A.D.3d 836, 840 [1st Dept 2011]). "A special relationship may be established by 'persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified'" (Mandarin Trading Ltd. v Wildenstein, 16 N.Y.3d 173, 180 [2011]). "A simple arm's length business relationship is not enough" to establish a special relationship (United Safety cf Am., Inc. v Consol. Edison Co. cf New York, Inc., 213 A.D.2d 283, 286 [1st Dept 1995]; see also Plaza Penthouse LLP v CPS 1 Realty LP, 24 Mise 3d 1238(A) [Sup Ct 2009] ["[A]n ordinary business relationship between a buyer and seller who negotiated a contract at arm's length, both being represented by counsel" does not qualify as a special relationship for negligent misrepresentation purposes]).
Here, the relationship between plaintiff and defendant was an ordinary business relationship between competent parties, both represented by counsel. Furthermore, the existence of the means of egress solely for emergency purposes as required by law does not eliminate the private nature of the roof. Accordingly, the plaintiffs motion for summary judgement on negligent misrepresentation must be denied and the defendant's motion to dismiss the claim must be granted.
Right cf First Rtfusal Waiver
In plaintiffs memorandum of law in support of their motion for summary judgement it also includes an argument that the contract was breached by defendant when it failed to obtain a waiver of the Right of First Refusal ("ROFR") from the Condominium Board. Paragraph 8 of the contract states:
8, Right of First Refusal: If so provided in the Declaration or Bylaws, this sale is subject to and conditioned upon the waiver of a right of first refusal to purchase the Unit held by the Condominium and exercisable by the Board. Seller agrees to give notice promptly to the Board of the contemplated sale of the Unit to Purchaser, which notice shall be given in accordance with the terms of the Declaration and By-Laws, and Purchaser agrees to provide promptly all applications, information and references reasonably requested by the Board. If the Board shall exercise such right of first refusal, Seller shall promptly return to Purchaser the Downnpayment (which term, for all purposes of this contract, shall be deemed to include interest, if any, earned thereon, and title charges including but not limited to examination of title and departmental charges) and upon the making of such refund this Contract shall be deemed cancelled and of no further force or effect and neither party shall have any further rights against, or obligation or liabilities to, the other by reason of this contract. If the Board shall fail to exercise such right of first refusal within the time and in the manner provided for in the
Declaration or By-laws or shall declare in writing its intention not to exercise such right of first refusal (a copy of which writing shall be delivered to Purchaser promptly following receipt thereof), the parties hereto shall proceed with this sale in accordance with the provisions of this Contract.
Defendant argues that plaintiff repudiated and anticipatorily breached the contract before a closing date was set when Linden sent an email requesting that the contract be terminated because of the damage to the floor (NYSCEF Doc No 291). Defendant also provides an affidavit from defendant's attorney affirming that he did send a ROFR waiver form to Goggin who is a member of the Condominium Board (NYSCEF Doc No 264). Additionally, Goggin in his deposition testified that he provided the Board with the ROFR (Goggin Affidavit, NYSCEF Doc No 276 at 67:13).
In addition to the substantive argument, defendant also argues that plaintiffs cannot assert the ROFR waiver to resist enforcement of the contract as they did not include any reference to it in either their pleadings or their affirmative defenses to the counterclaims.
CPLR § 3105(a) states that:
The performance or occurrence of a condition precedent in a contract need not be pleaded. A denial of performance or occurrence shall be made specifically and with particularity. In case of such denial, the party relying upon the performance or occurrence shall be required to prove on the trial only such performance or occurrence as shall have been so specified.
"[T]he burden to plead 'specifically and with particularity' that any condition precedent has not been fulfilled rests on the party resisting enforcement of the contract" (1199 Hous. Corp, v Intl. Fid. Ins. Co., 14 A.D.3d 383, 384 [1st Dept 2005]). Here, no where in plaintiffs complaint or response to the counterclaims does it specifically cite to the ROFR waiver as a defense of nonperformance. Plaintiff does point to its Fourth Affirmative Defense in which it states "Counterclaim-Plaintiff failed to satisfy a condition precedent in the parties' agreement, and therefore, its Counterclaims are barred" (NYSCEF Doc No 6). However, plaintiffs Fourth Affirmative Defense makes no mention of a RFOR waiver and considering that all three of the breach of contract claims in the complaint only reference provisions regarding the condition of the floor, it appears that the condition precedent being referenced in this defense is the refusal to repair the floorboards rather than obtaining a RFOR waiver.
Even if the merits of the failure to obtain a RFOR waiver were considered plaintiffs motion still must fail. "Anticipatory repudiation occurs "when, before the time for performance has arisen, a party to a contract declares [its] intention not to fulfill a contractual duty" (Condor Funding, LLC v 176Broadway Owners Corp., 147 A.D.3d 409, 411 [1st Dept 2017]). Plaintiff has not provided any evidence that the RFOR waiver needed to be obtained prior to the date in which it declared its intention to terminate the contract. A closing date had not yet been set and defendant has provided evidence it gave notice to the Board about the pending sale. Once plaintiff expressed its intent to terminate the contract, defendant was no longer required to obtain the waiver. There is still a question of fact whether defendant breached the contract by refusing to repair the floor prior to plaintiff expressing this intent, however plaintiff cannot rely on the RFOR waiver as a defense because defendant still had time to perform this obligation prior to the closing date.
Jury Trial
Defendant also seeks to strike plaintiffs demand for a jury trial. It argues that Count IV of plaintiffs complaint, seeking foreclosure on a lien on the Unit, is equitable in nature, and is not appropriate for a jury trial (NYSCEF Doc No 248 at 20). Plaintiff argues that because the "main thrust" of plaintiffs complaint is recovery of monetary damages, the action is legal in nature, and therefore it is entitled to a jury trial.
"The prevailing rule is that the deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial" (Hebranko v Bioline Labs., Ina, 149 A.D.2d 567 [2d Dept 1989]). "However, the right to a jury trial is to be determined by the facts alleged in the complaint and not by the prayer for relief' (id. at 568). "Where a plaintiff alleges facts upon which monetary damages alone will afford full relief, inclusion of a demand for equitable relief in the complaint's prayer for relief will not constitute a waiver of the right to a jury trial" (id.).
Here, plaintiff will be afforded full relief on its claims with an award of monetary damages. Plaintiffs claims seek the return of the downpayment plus interest and does not seek to recover title of the Unit. Therefore, plaintiffs claims are legal in nature and it is entitled to a jury trial. Accordingly, defendant's request to strike plaintiff s jury demand will be denied.
Based on the foregoing, it is:
ORDERED that plaintiffs motion (Mot Seq 009) to strike defendant's reply and defendant's motion for summary judgment is denied; and it is further
ORDERED that plaintiffs motion (Mot Seq 007) for summary judgment on Counts I, II, III, and V of the complaint and to dismiss defendant's counterclaims is denied; and it is further
ORDERED that defendant's motion (Mot Seq 008) for summary judgement is granted solely to the extent of dismissing Count V of the complaint for negligent misrepresentation and is otherwise denied.