Opinion
2020–04985 Index No. 512785/15
04-26-2023
313 43RD STREET REALTY, LLC, respondent-appellant, v. TMS ENTERPRISES, LP, et al., appellants-respondents, et al., defendant.
Steven G. Legum, Mineola, NY, for appellants-respondents. Heller, Horowitz & Feit, P.C., New York, NY (Eli Feit and Stuart A. Blander of counsel), for respondent-appellant.
Steven G. Legum, Mineola, NY, for appellants-respondents.
Heller, Horowitz & Feit, P.C., New York, NY (Eli Feit and Stuart A. Blander of counsel), for respondent-appellant.
COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover two down payments made pursuant to two contracts for the sale of real property, the defendants TMS Enterprises, LP, and 313 43rd Street Realty Associates, Ltd., appeal, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated October 31, 2019. The order, insofar as appealed from, denied the motion of the defendants TMS Enterprises, LP, and 313 43rd Street Realty Associates, Ltd., for summary judgment dismissing the complaint insofar as asserted against them and on their first and second counterclaims. The order, insofar as cross-appealed from, denied the plaintiff's cross-motion for summary judgment on the complaint and directing the defendants to return to the plaintiff the down payments made pursuant to the contracts for the sale of real property, and, in effect, for summary judgment dismissing the first and second counterclaims asserted by the defendants TMS Enterprises, LP, and 313 43rd Street Realty Associates, Ltd.
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff (hereinafter the buyer) commenced this action to recover two down payments that were made pursuant to two contracts for the sale of two parcels of real property. The defendants TMS Enterprises, LP, and 313 43rd Street Realty Associates, Ltd. (hereinafter together the sellers), interposed an amended answer that included three counterclaims. The first two counterclaims alleged that the buyer breached the contracts of sale and that the sellers were therefore entitled to retain the down payments.
The sellers moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The buyer cross-moved for summary judgment on the complaint and directing the defendants to return the down payments, and, in effect, dismissing the sellers’ first and second counterclaims.
In an order dated February 19, 2016, the Supreme Court, among other things, denied that branch of the sellers’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint, and granted the buyer's cross-motion. On March 16, 2016, a judgment was issued, inter alia, in favor of the buyer and against the sellers dismissing the sellers’ first and second counterclaims, and in favor of the buyer and against the defendants on the complaint and directing them to return to the buyer its down payments in the total principal sum of $680,000. The sellers appealed from the judgment.
In a decision and order dated July 5, 2018, this Court modified the judgment, inter alia, by deleting the provisions thereof which were in favor of the buyer and against the sellers dismissing the sellers’ first and second counterclaims, and in favor of the buyer and against the defendants on the complaint and directing them to return to the buyer its down payments in the total principal sum of $680,000. This Court determined that the Supreme Court should not have granted the buyer's cross-motion for summary judgment, as the buyer's submissions failed to establish that the sellers were not ready, willing, and able to close, or that they otherwise breached the contracts of sale (see 313 43rd St. Realty, LLC v. TMS Enters., LP, 163 A.D.3d 512, 516, 81 N.Y.S.3d 112 ).
After additional discovery was conducted, the sellers moved for summary judgment dismissing the complaint insofar as asserted against them and on their first and second counterclaims. The buyer cross-moved for summary judgment on the complaint and directing the defendants to return the down payments and, in effect, for summary judgment dismissing the sellers’ first and second counterclaims. In an order dated October 31, 2019, the Supreme Court denied the motion and the cross-motion. The sellers appeal, and the buyer cross-appeals.
The Supreme Court properly denied the sellers’ motion for summary judgment dismissing the complaint insofar as asserted against them and on their first and second counterclaims. As a general rule, to prevail on a cause of action for the return of a down payment on a contract for the sale of real property, the evidence must demonstrate that the seller was not ready, willing, and able to perform on the law day (see Cohen v. Kranz, 12 N.Y.2d 242, 246, 238 N.Y.S.2d 928, 189 N.E.2d 473 ; 313 43rd St. Realty, LLC v. TMS Enters., LP, 163 A.D.3d at 514, 81 N.Y.S.3d 112 ; Imperatore v. 329 Menahan St., LLC, 130 A.D.3d 784, 785, 13 N.Y.S.3d 526 ). Similarly, to prevail on a cause of action that a buyer breached a contract of sale and that the seller was entitled to retain the down payment, the seller must establish that he or she was ready, willing, and able to close on the law day (see 533 Park Ave. Realty, LLC v. Park Ave. Bldg. & Roofing Supplies, LLC, 156 A.D.3d 744, 746–747, 68 N.Y.S.3d 110 ; Nehmadi v. Davis, 95 A.D.3d 1181, 1185, 945 N.Y.S.2d 122 ).
Here, the sellers failed to establish, prima facie, that they were ready, willing, and able to convey marketable title in accordance with the contracts of sale. Paragraph 4 of the contracts required the sellers to give such title as any reputable title company would be willing to approve and insure in accordance with its standard form of title policy. The title insurance company required that a judgment of foreclosure and sale on the property be vacated, the corresponding action be discontinued, and the notice of pendency of action cancelled by order of the court. The sellers’ submissions failed to eliminate triable issues of fact as to whether they could clear this exception to the title insurance policy prior to closing. Since the sellers failed to establish their prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against them and on their first and second counterclaims, the Supreme Court properly denied their motion, without consideration of the sufficiency of the buyer's opposing papers (see Revital Realty Group, LLC v. Ulano Corp., 112 A.D.3d 902, 904–905, 978 N.Y.S.2d 77 ; Iannucci v. 70 Washington Partners, LLC, 51 A.D.3d 869, 872, 858 N.Y.S.2d 322 ).
Further, the Supreme Court properly denied the buyer's cross-motion for summary judgment. "Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" ( Sutter v. Wakefern Food Corp., 69 A.D.3d 844, 845, 892 N.Y.S.2d 764 ; see GLND 1945, LLC v. Ballard, 209 A.D.3d 993, 177 N.Y.S.3d 315 ; Hillrich Holding Corp. v. BMSL Mgt., LLC, 175 A.D.3d 474, 475, 103 N.Y.S.3d 846 ; Vinar v. Litman, 110 A.D.3d 867, 868, 972 N.Y.S.2d 704 ; Coccia v. Liotti, 101 A.D.3d 664, 666, 956 N.Y.S.2d 63 ; Powell v. Trans–Auto Sys., Inc., 32 A.D.2d 650, 300 N.Y.S.2d 747 ). Evidence is not "newly discovered" simply because it was not submitted on the previous motion ( Sutter v. Wakefern Food Corp., 69 A.D.3d at 845, 892 N.Y.S.2d 764 ). "Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means" ( Vinar v. Litman, 110 A.D.3d at 868–869, 972 N.Y.S.2d 704 ; see Pavlovich v. Zimmet, 50 A.D.3d 1364, 1365, 857 N.Y.S.2d 744 ; Capuano v. Platzner Intl. Group, 5 A.D.3d 620, 621, 774 N.Y.S.2d 780 ). "[S]uccessive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" ( Capuano v. Platzner Intl. Group, 5 A.D.3d at 621, 774 N.Y.S.2d 780 ; see Vinar v. Litman, 110 A.D.3d at 869, 972 N.Y.S.2d 704 ; Harding v. Buchele, 59 A.D.2d 754, 755, 398 N.Y.S.2d 837 ).
Here, although the deposition testimony of Terry Lazar, a principal of the sellers, was not elicited until after this Court's decision and order holding that the buyer's previous cross-motion for summary judgment should have been denied, the buyer failed to demonstrate that Lazar's testimony established facts that were not available to the buyer at the time it made its previous cross-motion for summary judgment and which could not have been established through alternative evidentiary means (see Hillrich Holding Corp. v. BMSL Mgt., LLC, 175 A.D.3d at 475, 103 N.Y.S.3d 846 ; Vinar v. Litman, 110 A.D.3d at 868, 972 N.Y.S.2d 704 ). Accordingly, the Supreme Court properly denied the buyer's second cross-motion (see GLND 1945, LLC v. Ballard, 209 A.D.3d 993, 177 N.Y.S.3d 315 ; Hillrich Holding Corp. v. BMSL Mgt., LLC, 175 A.D.3d at 475, 103 N.Y.S.3d 846 ; Vinar v. Litman, 110 A.D.3d at 868, 972 N.Y.S.2d 704 ).
In light of our determination, we need not reach the parties’ remaining contentions.
DUFFY, J.P., CONNOLLY, ZAYAS and WAN, JJ., concur.