Opinion
Index No. 524353/2022
03-31-2023
590 MYRTLE LLC, Plaintiff, v. SILVERMAN-SHAW INC., Defendants.
The following numbered papers were read on these motions:
NYSCEF Doc No. 1: Summons and complaint, submitted by Plaintiff
NYSCEF Doc No. 2: Notice of pendency, submitted by Plaintiff
NYSCEF Doc No. 3: Affidavit of service, submitted by Plaintiff
NYSCEF Doc No. 4: Affidavit of service, submitted by Plaintiff
NYSCEF Doc No. 5: Proposed order to show cause, submitted by Defendant
NYSCEF Doc No. 6: Memorandum of law, submitted by Defendant
NYSCEF Doc No. 7: Affidavit of Raymond Lee, submitted by Defendant
NYSCEF Doc No. 8: Affirmation of Marc Z. Newman, submitted by Defendant
NYSCEF Doc No. 9: Exhibit A - email and contract with riders, submitted by Defendant
NYSCEF Doc No. 10: Exhibit B - emails, submitted by Defendant
NYSCEF Doc No. 11: Exhibit C - emails, submitted by Defendant
NYSCEF Doc No. 12: Request for Judicial Intervention, submitted by Defendant
NYSCEF Doc No. 13: Proposed order to show cause, submitted by Proposed Intervenor
NYSCEF Doc No. 14: Affirmation of Marc Illish, submitted by Proposed Intervenor
NYSCEF Doc No. 15: Affidavit of Yosef Beer, submitted by Proposed Intervenor
NYSCEF Doc No. 16: Exhibit A - proposed answer with counterclaims and cross-claims, submitted by Proposed Intervenor
NYSCEF Doc No. 17: Exhibit B - contract, submitted by Proposed Intervenor
NYSCEF Doc No. 18: Affirmation of H. Jonathan Rubinstein, submitted by Defendant
NYSCEF Doc No. 19: Order to show cause (Motion No. 2), submitted by court user
NYSCEF Doc No. 20: Acknowledgment of service, submitted by Proposed Intervenor
NYSCEF Doc No. 21: Memorandum of law, submitted by Plaintiff
NYSCEF Doc No. 22: Affidavit of Jacob Kohn, submitted by Plaintiff
NYSCEF Doc No. 23: Exhibit A - emails, submitted by Plaintiff
NYSCEF Doc No. 24: Exhibit B - emails, submitted by Plaintiff
NYSCEF Doc No. 25: Exhibit C - emails, submitted by Plaintiff
NYSCEF Doc No. 26: Exhibit D - email, submitted by Plaintiff
NYSCEF Doc No. 27: Exhibit E - emails, submitted by Plaintiff
NYSCEF Doc No. 28: Exhibit F - email, submitted by Plaintiff
NYSCEF Doc No. 29: Exhibit G - emails, submitted by Plaintiff
NYSCEF Doc No. 30: Exhibit H - emails, submitted by Plaintiff
NYSCEF Doc No. 31: Exhibit I - emails, submitted by Plaintiff
NYSCEF Doc No. 32: Exhibit J - emails, submitted by Plaintiff
NYSCEF Doc No. 33: Exhibit K - email, submitted by Plaintiff
NYSCEF Doc No. 34: Exhibit L - email, submitted by Plaintiff
NYSCEF Doc No. 35: Exhibit M - email, submitted by Plaintiff
NYSCEF Doc No. 36: Exhibit N - contract with riders, submitted by Plaintiff
NYSCEF Doc No. 37: Exhibit O - email, submitted by Plaintiff
NYSCEF Doc No. 38: Exhibit P - text message, submitted by Plaintiff
NYSCEF Doc No. 39: Exhibit Q - text message, submitted by Plaintiff
NYSCEF Doc No. 40: Affirmation of Jay Lichtman, submitted by Plaintiff
NYSCEF Doc No. 41: Memorandum of law, submitted by Plaintiff
NYSCEF Doc No. 42: Affidavit of Jacob Kohn, submitted by Plaintiff
NYSCEF Doc No. 43: Exhibit A - emails, submitted by Plaintiff
NYSCEF Doc No. 44: Exhibit B - emails, submitted by Plaintiff
NYSCEF Doc No. 45: Exhibit C - emails, submitted by Plaintiff
NYSCEF Doc No. 46: Exhibit D - email, submitted by Plaintiff
NYSCEF Doc No. 47: Exhibit E - emails, submitted by Plaintiff
NYSCEF Doc No. 48: Exhibit F - email, submitted by Plaintiff
NYSCEF Doc No. 49: Exhibit G - emails, submitted by Plaintiff
NYSCEF Doc No. 50: Exhibit H - emails, submitted by Plaintiff
NYSCEF Doc No. 51: Exhibit I - emails, submitted by Plaintiff
NYSCEF Doc No. 52: Exhibit J - emails, submitted by Plaintiff
NYSCEF Doc No. 53: Exhibit K - email, submitted by Plaintiff
NYSCEF Doc No. 54: Exhibit L - email, submitted by Plaintiff
NYSCEF Doc No. 55: Exhibit M - email, submitted by Plaintiff
NYSCEF Doc No. 56: Exhibit N - contract with riders, submitted by Plaintiff
NYSCEF Doc No. 57: Exhibit O - email, submitted by Plaintiff
NYSCEF Doc No. 58: Exhibit P - text message, submitted by Plaintiff
NYSCEF Doc No. 59: Exhibit Q - text message, submitted by Plaintiff
NYSCEF Doc No. 60: Affirmation of Jay Lichtman, submitted by Plaintiff
NYSCEF Doc No. 61: Order to show case (Motion #3), submitted by court user
NYSCEF Doc No. 62: Acknowledgment of service, submitted by Defendant
NYSCEF Doc No. 63: Stipulation of consolidation, submitted by Defendant
NYSCEF Doc No. 64: Order proposing conversion to summary judgment, submitted by court user
NYSCEF Doc No. 65: Order proposing conversion to summary judgment, submitted by court user
NYSCEF Doc No. 66: Order proposing conversion to summary judgment, submitted by court user
NYSCEF Doc No. 67: Order proposing conversion to summary judgment, submitted by court user
NYSCEF Doc No. 68: Reply memorandum, submitted by Proposed Intervenor
NYSCEF Doc No. 69: Affirmation of Jason Grunberg, submitted by Defendant
NYSCEF Doc No. 70: Exhibit A - text messages, submitted by Defendant
NYSCEF Doc No. 71: Exhibit B - transaction memorandum, submitted by Defendant
NYSCEF Doc No. 72: Supplemental memorandum of law, submitted by Defendant
NYSCEF Doc No. 73: Letter to judge, submitted by Plaintiff
NYSCEF Doc No. 74: Affirmation of Jacob Kohn, submitted by Plaintiff
Upon the foregoing papers and having heard oral argument on the record, the within motions are determined as follows.
Background
The underlying dispute results from Defendant Silverman-Shaw Inc.’s ("Silverman") decision not to consummate a sale in the summer of 2022 to Plaintiff 590 Myrtle LLC ("Myrtle") of property located at 60, 62, 64, and 66 Franklin Avenue in Brooklyn, New York (Block 1884, Lots 68 and 69) for the sum of $9,500,000 pursuant to a contract of sale and riders ("Silverman-to-Myrtle Contract") (NYSCEF Doc Nos. 9, 36, 56), but instead to sell the property to Proposed Intervenor Franklin Energy LLC ("Franklin") at a sum of $9,700,000 pursuant to another contract of sale ("Silverman-to-Franklin Contract") (NYSCEF Doc No. 17). Myrtle maintains that the Silverman-to-Myrtle Contract was a legally binding and enforceable one, that Silverman reneged and improperly entered into the Silverman-to-Franklin contract, and that Silverman still possesses Myrtle's $475,000 down payment. Silverman denies that the Silverman-to-Myrtle Contract was legally binding and enforceable; it is willing to return the $475,000 down payment. The foregoing dealings between Silverman and Myrtle occurred during the time period from on or about June 23, 2022 to July 14, 2022. Franklin maintains that it entered into a binding contract with Silverman on July 12, 2022, to purchase the property.
A July 14, 2022 email to Myrtle's attorney said, "Please send me your wiring instructions so that I can return the down payment."
The negotiations and discussions between attorneys for Myrtle and Silverman apparently took place almost completely by email, thus leading to the inescapable conclusion that the resolution of this action must be determined by these emails along with copies of the Silverman-to-Myrtle Contract with riders, together with the submitted affidavits and affirmations.
There were two riders. The one with the wider printed lines was submitted by the Myrtle side. The one with the narrower printed lines was submitted by the Silverman side. As we will see, the Myrtle-submitted rider engendered a dispute concerning paragraph 9 which was never finally resolved (see below).
The record contains dueling claims of Jason Grunberg, a sales associate with the listing broker (NYSCEF Doc No. 69, affidavit), and Jacob Kohn, managing member of Plaintiff Myrtle (NYSCEF Doc No. 74, affirmation), as to whether Mr. Kohn was aware that until Silverman signed the Silverman-to-Myrtle contract it was not binding. This Court finds these claims irrelevant since the emails and the Silverman-to-Myrtle contract speak for themselves. This case calls for legal conclusions with regard to the documents, including the emails embodying the negotiations between Myrtle and Silverman. What transpired between Mr. Grunberg and Mr. Kohn does not provide any additional relevant information toward a determination as to whether or not there was a binding contract.
Before this Court are two motions. Franklin moved in Motion Sequence #2 to intervene as a Defendant, have its proposed answer accepted, and dismiss Myrtle's complaint, and for other and further just relief (NYSCEF Doc No. 19).
In Motion Sequence #3, Silverman moved for the following relief: dismissing and striking the complaint; discharging the notice of pendency Myrtle filed against the property on August 22, 2022; awarding Silverman attorney's fees, costs of suit, and positive expenses caused by the filing of the notice of pendency; and other and further just relief (NYSCEF Doc No. 61).
Insofar as the two motions sought dismissal of Myrtle's complaint, they invoked CPLR 3211. CPLR 3211 (a) contains the grounds for dismissing a cause of action. Paragraph (1), relied on by Silverman and Franklin permits dismissal when a defense is grounded upon documentary evidence. Paragraph (5), relied on by Franklin, contains several grounds for dismissal, the pertinent one in this case being the statute of frauds. Paragraph (7), relied on by Silverman and Franklin, provides for dismissal when the pleading fails to state a cause of action.
In reviewing the motion papers this Court observed that resolution of the underlying dispute was dependent on the documentary evidence submitted therein, as supplemented by the affirmations and affidavits also submitted. The facts are essentially not in dispute and they are related through the documentary evidence, affirmations, and affidavits. What is in dispute is how the documents are to be construed in terms of the law. This action was ripe for adjudication by summary judgment. Accordingly, on March 24, 2023, the Court issued an Order as follows:
Plaintiff's complaint alleges that Defendant entered into a binding contract to sell it property located at 60, 62, 64, and 66 Franklin Avenue in Brooklyn and has reneged on consummating the sale. It seeks a judgment ordering specific performance or, alternatively, return of its down payment.
Defendant and Proposed Intervenor have moved to dismiss the complaint pursuant to CPLR 3211(a), including paragraph 1, which refers to a defense founded upon documentary evidence. Both Plaintiff and Defendant rely on numerous emails, the validity of which does not appear to be contested, to support their respective positions.
Plaintiff's opposition to Defendant's and Proposed Intervenor's motions is in effect is a cross-motion for summary judgment (see Affidavit of Jacob Kohn [Nov. 7, 2022] [requesting the Court to grant specific performance]).
It appears that Plaintiff, Defendant, and Proposed Intervenor have deliberately charted a summary judgment course (see California Suites, Inc. v Russo Demolition Inc. (98 AD3d 144 [1st Dept 2012] ; Cheng v Brewran Village Hudson Associates (180 AD2d 519 [1st Dept 1992] ; Reed v Shoratlantic Development., Inc. , 121 AD2d 525 [2d Dept. 1986] ). The negotiations and discussions between the parties apparently took place almost completely by email, thus leading to the inescapable conclusion that the resolution of this action will be determined by them.
THEREFORE, this Court provides notice that it may treat the motions to dismiss as ones for summary judgment, and it is hereby
ORDERED as follows:
(1) Plaintiff, Defendant, and Proposed Intervenor are afforded an opportunity to respond to this Court's notice that it may treat the motions to dismiss as ones for summary judgment,
(2) Although the Court believes that Plaintiff, Defendant, and Proposed Intervenor have adequately and fully submitted supporting papers and legal argument with respect to the underlying dispute, leave is granted to them to submit further evidence by way of affidavits and other documentary evidence, and memoranda of law, no later than 3:00 PM, Tuesday, March 28, 2023.
At oral argument before this Court on March 29, 2023, Plaintiff argued that summary judgment would be appropriate only if it was granted in its favor. Defendant argued that summary judgment would be appropriate only if it was granted in its favor. Franklin took the position that summary judgment was appropriate regardless of who prevailed.
Franklin's Motion to Intervene
Franklin's motion to intervene as a Defendant is predicated on CPLR 1012 (intervention as of right) and 1013 (intervention by permission). Since Franklin claims it is entitled to consummate the July 12, 2022 Silverman-to-Franklin Contract—"In contrast to the Myrtle Contract, the Franklin Contract was executed by Silverman. Thus, Franklin has a superior legal interest in the Property as compared to Myrtle who has no enforceable interest at all." (NYSCEF Doc No. 14 at ¶ 10)—it clearly has an interest in opposing Myrtle's claims in this action (see CPLR 1012 [a] [3] ["when the action involves the disposition or distribution of, or the title to ... property and the person may be affected adversely by the judgment"].
However, Franklin's proposed answer included counterclaims against Myrtle and cross-claims against Silverman. The issue of any damages sustained by Franklin is divergent from the issue of whether Myrtle and Silverman entered into a binding contract. Franklin's claims against Myrtle can be asserted in a separate action. Moreover, even in CPLR 1012 situations, the court enjoys a measure of discretion in determining whether to allow intervention (see Berry v St. Peter's Hosp. of Albany , 250 AD2d 63 [2d Dept 1998] ).
Inasmuch as summary judgment dismissing the complaint is granted to the extent it sought specific performance of the Silverman-to-Myrtle Contract, based on Silverman's motion (see below), this Court finds that Franklin's motion to intervene and to dismiss Myrtle's complaint is denied as superfluous and academic (see Royal Service LLC v Village of Monticello Inc. , 247 AD2d 779 [3d Dept 1998] ; Visentin v Superintendent of Haldane Cent. School Dist. , 4 Misc 3d 1018(A), 2004 NY Slip Op 50936(U), *3 [Sup Ct, Putnam County 2004]).
Summary Judgment
This Court now finds that the parties have deliberately charted a summary judgment course since all the facts, principally contained in the submitted documents, and the legal arguments have been presented (see California Suites, Inc. v Russo Demolition Inc. ; Cheng v Brewran Village Hudson Associates ; Reed v Shoratlantic Development., Inc. ). The motion of Silverman to dismiss pursuant to CPLR 3211 is deemed to constitute a motion for summary judgment dismissing and striking the complaint; discharging the notice of pendency Myrtle filed against the property; awarding Silverman attorney's fees, costs of suit, and positive expenses caused by the filing of the notice of pendency; and granting other and further just relief.
This is the relief sought in Silverman's CPLR 3211 motion.
Myrtle's papers in opposition to both motions are deemed to constitute a cross-motion for summary judgment seeking this Court to order "[D]efendant Silverman-Shaw LLC to specifically perform the Contract of Sale and Rider to the Contract of Sale, and consummate the sale of the Property to [P]laintiff," and "[i]n the event the Court determines not to give the [said] relief requested ..., that the Court order [D]efendant to immediately return to [P]laintiff the Downpayment of $475,000, plus prejudgment interest thereon," along with the Court "[g]ranting [P]laintiff such other an further relief as the Court deems just and proper."
This relief is quoted from Myrtle's complaint (NYSCEF Doc No. 1 at numbered pp 4-5).
Documentary Evidence
Adjudication of the motions herein is dependent upon the contents of documentary evidence: the Silverman-to-Myrtle Contract and exchanges of emails and text messages. Copies of the Silverman-to-Myrtle Contract and riders are in the motion papers at NYSCEF Doc Nos. 9, 36, and 56. The parties do not dispute that that the documentary evidence is undeniably authentic.
Series of exchanges in 2022—mostly emails—were submitted by the parties into the record for these motions. The correspondents were Jay Lichtman (attorney for Myrtle); Jacob Kohn (managing member of Plaintiff); Marc Z. Newman (attorney for Silverman); Shani Schmelczer (paralegal at Silverman's attorney's law firm); Jessica Meltzer (paralegal at Silverman's attorney's law firm); and Brittany Elbogen (someone with Silverman or its attorney's law firm).
The exchanges are reproduced as follows (cc-s omitted) in chronological order, derived from NYSCEF Doc Nos. 9-11, 23-35, 37-39, 43-55, and 57-59:
June 23 (3:49 PM) — Schmelczer to Lichtman:
Enclosed is a proposed contract of sale covering the above transaction. If acceptable, kindly have your client sign four and return to me with a check to the order of MARC Z. NEWMAN AS ATTORNEY in the sum of $475,000.00 representing the contract deposit, whereupon I will have seller sign and I will return two fully executed copies to you. Please do not make any changes to the contract without discussing them with Mr. Newman.
Please be advised that our client has not reviewed the contract and, accordingly, until you receive fully executed copies, there is no offer or obligation by seller. Thank you for your cooperation and courtesy. [emphasis added]
June 28 (7:02 PM) — Lichtman to Schmelczer:
See attached hand mark ups and proposed Purchaser rider.
June 30 (1:26 PM) — Schmelczer to Lichtman:
Enclosed is a revised redline and clean contract as discussed with Mr. Newman. The main changes relate to Rider 1L regarding environmental issues. Also enclosed is a mark up of your rider. Please review this as soon as possible as there is another purchaser pressuring us to move forward. Thank you.
July 6 (11:06 AM) — Schmelczer to Lichtman, Newman, Meltzer:
Please see attached wiring instructions. We were told that your client signed the contract yesterday. If we do not have a signed contract by email and confirmation that you initiated the wire by 12 noon today, Mr. Newman has been instructed to open discussions with another buyer. Thank you. [emphasis added]
July 6 (12:26 PM) — Lichtman to Kohn:
[forwarded message]
July 6 (12:27 PM) — Lichtman to Schmelczer:
He did sign and he is on the way to send a wire. I was on a conference call so l just saw this email you sent now. I am just updating my rider to make the changes that MArc and I agreed to and then I will attach the signature pages and send them over.
July 6 (12:47 PM) — Lichtman to Kohn:
Please sign the attached as well and send me the wire confirmation ASAP. These people are crazy.
July 6 (12:59 PM) — Kohn to Lichtman:
Signed.
July 6 (12:59 PM) — Lichtman to Kohn:
Did you do the wire yet?
July 6 (1:09 PM) — Lichtman to Schmelczer:
Attached are the contracts and two wires signed by Purchaser
July 6 (1:14 PM) — Kohn to Lichtman:
Doing now
July 6 (3:27 PM) — Lichtman to Schmelczer:
See attached
July 6 (5:22 PM) — Newman to Lichtman, Schmelczer:
I still did not receive your rider in word.
July 6 (5:24 PM) — Lichtman to Newman:
In the email before. I sent it at 3:27, attached again
July 6 (7:09 PM) — Lichtman to Schmelczer:
Attached are the contracts and two wires signed by Purchaser
July 6 (7:51 PM) — Newman to Lichtman:
ok ... ty
July 7 (11:59 AM) — Schmelczer to Lichtman:
Please see revised purchaser's rider and with paragraph's 8 and 9 deleted and 11 revised. With respect to 9 seller is amenable to work out a mutually satisfactory division of the two properties and the consideration for each at the time of closing provided it does not negatively impact on his 1031 exchanges. Please confirm that the revisions are acceptable and that the balance of the deposit has been wired so that we can firmly be in contract today. Any questions, feel free to contact Mr. Newman. Thank you
July 7 (12:02 PM) — Schmelczer to Lichtman:
Please Disregard previous attachment and use this attachment. Please confirm.
July 7 (12:02 PM) — Lichtman to Schmelczer:
9 was the first thing I asked for and you already agreed on it. Why are you changing this at the last minute?
July 7 (12:42 PM) — Schmelczer to Lichtman:
Mr. Newman's client cannot hand over the decisions to purchaser on how to allocate the purchase prices without knowing how he will have to allocate amounts for the properties he will be purchasing as part of the 1031 exchanges. Please advise.
July 7 (12:52 PM) — Lichtman to Schmelczer:
It was updated so the buyer and seller have to reasonably agree. In other words one the time comes both sides will agree and work it out
July 7 (12:58 PM) — Schmelczer to Lichtman:
Mr. Newman is asking for a simple statement in your rider that parties shall by mutual agreement allocate the value of the two buildings if they are deeded separately provided its conforms to the sellers allocations for his 1031 exchange purchases.
July 7 (1:30 PM) — Lichtman to Schmelczer:
Add the word reasonable and we are good to go
July 7 (4:42 PM) — Lichtman to Schmelczer:
Updated signed rider attached.
Please send back executed agreements.
July 8 (11:29 AM) Text — ? (probably Lichtman) to Kohn:
Hey Jacob,
I want to let you know that the seller's attorney and his assistant is out of town for the weekend. I'm working on getting the contract signed but that's why it's moving slow.
July 8 (1:54 pm) Text — ? (probably Kohn) to ? (probably Lichtman):
If he has the signed contract, I assume he will sign it and send it back. I haven't been able to reach him today.
July 11 (10:27 AM) — Lichtman to Schmelczer:
Did the seller sign yet?
July 11 (1:47 PM) — Lichtman to Elbogen, Newman:
[forwarded message]
July 12 (4:05 PM) — Lichtman to Elbogen, Newman:
Marc,
Can we finish this deal?
July 14 (2:24 PM) — Meltzer to Lichtman:
I was told that this transaction is not proceeding. Please send me your wiring instructions so that I can return the down payment.
Do the foregoing email and text message exchanges—together with the Silverman-to-Myrtle Contract—constitute documentary evidence which may form the basis for a motion to dismiss pursuant to CPLR 3211 (a) (1) ?
Emails can undoubtedly be used in motions for summary judgment, and this Court has determined that the dispute brought on by the motion practice herein is ripe for summary judgment determination. Nonetheless, for the purpose of a complete determination this Court deems it appropriate to review the case law concerning the use of emails as documentary evidence on a CPLR 3211 motion to dismiss, in the event it should be held on appeal that conversion to summary judgment was not appropriate and that only CPLR 3211 dismissal should have been considered.
This Court's research on the issue of whether emails may be used on a motion to dismiss causes of action reveals that the Appellate Division, First Department, has been much more willing to accept them than has the Appellate Division, Second Department (see generally Bruce H. Lederman, Role of Emails in CPLR 3211(a)(1) Motions , 22 NY Litigator 18 [Spring 2017]).
Several of the emails appear in both Myrtle's and Silverman's motion submissions. Both Myrtle and Silverman are relying on emails. Neither of them has questioned the authenticity of emails submitted by the other. Simply stated, these emails are indicative of a trend which developed at the turn of this century in which a lot of business communications have taken place virtually rather than through telephone conversations or in-person meetings.
In determining the issue of whether emails may be used as documentary evidence on CPLR 3211 dismissal motions, this Court takes note of the decision in Bath & Twenty, LLC v Federal Savings Bank (198 AD3d 855 [2d Dept 2021] [quotation marks omitted]:
To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a) (1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law ( Burgos v New York Presbyt. Hosp. , 155 AD3d 598, 599 [2017], quoting Gould v Decolator , 121 AD3d 845, 847 [2014] ). To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable (see JPMorgan Chase Bank, N.A. v Klein , 178 AD3d 788, 790 [2019] ). [J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case ( id. at 790, quoting Eisner v Cusumano Constr., Inc. , 132 AD3d 940, 941 [2015] ). Letters, emails, and affidavits are not documentary evidence (see Shah v Mitra , 171 AD3d 971, 973 [2019] ). [emphasis added]
But, as noted in Hon. Mark C. Dillon's Supplemental Practice Commentaries (McKinney's Cons Laws of NY, CPLR C3211:10 [2022]),
E-mails continue to be reflected in cases on an ever-increasing basis, as more and more business is conducted using that form of communication. In Cohen v Getzel , 205 AD3d 532, 166 N.Y.S.3d 527 (1st Dep't. 2022), the plaintiff taxpayer sought damages against the defendant accountant for certain IRS tax penalties and interest, imposed as a result of errors on a 2016 tax return. Apparently, the net amount of the plaintiff's recoverable damages were credited to the plaintiff against fees that were otherwise owed to the defendant, as evidenced by an uncontested e-mail from the defendant to the plaintiff. The court accepted the e-mail as evidence in support of the defendant's motion to dismiss, on the ground that the plaintiff incurred no recoverable damages, finding it a "proper case" for evidentially allowing the uncontested e-mail. Presumably, the e-mail at issue was deemed to be authentic and disposed of the plaintiff's claim. Similarly, in Ostojic v Life Medical Technologies, Inc. , 201 AD3d 522, 162 N.Y.S.3d 27 [1st Dep't. 2022] ), where the issue was whether the parties had reached a meeting of the minds on a federal case settlement and whether there was a breach of that contract, the state court relied upon e-mails and letters sent by the parties to the federal court in concluding that the material terms of a settlement had been reached there. Observationally, the authenticity of the e-mails and letters was aided by the fact that they were generated in real-time and addressed to a court, were directly related to the subject matter, and were uncontested.
In Kolchins v Evolution Markets, Inc. (128 AD3d 47 [1st Dept 2015] ), involving whether an offer of employment had been offered and accepted by email, the court held that there was nothing unclear, ambiguous, or unequivocal. The parties created a binding contract. There was no evidence indicating that either party expressly reserved the right not to be bound prior to the execution of a formal writing or that the language of the parties’ correspondence reflected an unambiguous intent not to be bound until a formal writing was executed.
Cases where emails constituted documentary evidence sufficient to support dismissal pursuant to CPLR 3211 include:
• Gottesman Co. v A.E.W, Inc. (190 AD3d 522 [1st Dept 2021] ): Documentary evidence which included undisputed emails and transaction documents conclusively established a defense warranting dismissal of the plaintiff-company's claims that it was entitled to a finder's fee pursuant to an agreement with the defendant-company in which the plaintiff agreed to operate as a business intermediary for the defendant with respect to a sale, merger, or other business transaction.
• Binn v Muchnick, Golieb & Golieb, P.C. (180 AD3d 598 [1st Dept 2020] ): Emails and business transaction documents conclusively established a defense, warranting dismissal of legal malpractice claims that former holders of a majority interest in a limited liability company asserted against their attorneys relating to advice concerning transactions, where the documentary evidence rendered it essentially undeniable that holders were advised of and/or otherwise understood the terms of transactions, as well as their alternative options, if any.
• Mendoza v Akerman Senterfitt LLP (128 AD3d 480 [1st Dept 2015] ): Emails concerning a medical partnership agreement were admissible and could be relied on in a CPLR 3211 motion to dismiss in an action alleging breach of a fiduciary duty to a joining partner by attorneys for the partnership.
Quite a lot of the case law holding that emails fail to meet the requirements for documentary evidence on a motion to dismiss emanates from the Appellate Division, Second Department. Besides the above-quoted case of Bath & Twenty, LLC v Federal Savings Bank , examples include:
• Lessin v Piliaskas , 188 AD3d 859 [2d Dept 2018] ): Certain email correspondence submitted by a continuing partner purportedly exchanged between a withdrawing partner and the corporation's accountant did not constitute documentary evidence in support of a motion to dismiss the withdrawing partner's suit for anticipatory breach of contract with regard to the buyout provision in the corporate agreement.
• Matter of Elberg (164 AD3d 497 [2d Dept 2018] ): Emails submitted in support of a motion to dismiss a turnover petition in Surrogate's Court failed to meet the requirements for documentary evidence.
• Cives Corp. v George A. Fuller Co., Inc. (97 AD3d 713 [2d Dept 2012] ): Emails and letters did not constitute documentary evidence under CPLR 3211 (a) (1) to warrant the dismissal of a claim demanding payment to a subcontractor by the insurer of the bond amount.
Most recently, on January 25th of this year, the Second Department repeated its oft-written statement that letters, emails, and affidavits do not meet the requirements for documentary evidence (see Xu v Van Zwienen , 212 AD3d 872 [2d Dept 2023], citing Phillips v Taco Bell Corp. , 152 AD3d 806 [2d Dept 217] ). It thus appears at first blush that the Second Department has an inflexible approach when movants seeking dismissal of claims rely on emails as documentary evidence.
However, in Saul v Vidokle (151 AD3d 780 [2d Dept 2017] ), involving a plaintiff's claim that he entered into a binding contract to buy real property from the defendant, the Appellate Division, in modifying an order of Supreme Court denying a CPLR 3211 motion to dismiss, held that emails "were insufficient to satisfy the statute of frauds, as they left for future negotiations essential terms of the contemplated contract, such as a down payment, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes and utilities, and were subject to the execution of a more formal contract of sale" ( 151 AD3d at 781 ). Given that the court relied on the emails for this conclusion, however, it is evident that the court impliedly deemed them admissible on the motion to dismiss pursuant to CPLR 3211.
In 42nd Avenue Commons, LLC v Barracuda, LLC (140 AD3d 1012 [2d Dept 2016] ), the Second Department relied on emails exchanged by the parties’ attorneys to conclude that the parties did not intend to be bound until the signing of a formal contract of sale. Further facts are contained in the Supreme Court's decision at 2014 WL 12577269 (Sup Ct, Queens County 2014) :
Here, defendant moves for dismissal, pursuant to CPLR § 3211 (a) (1) and (5), based upon the documentary evidence and the Statute of Frauds, contending that "plaintiff's attorney, [Jay Yackow] sent a proposed contract of sale to defendant's attorney, Alison I. Blaine, but defendant did not subscribe to or sign the aforesaid agreement." In support thereof, defendant attaches a copy of the Contract of Sale dated October 2013, executed only by plaintiff. Defendant further states that it did not "sign any other comparable document that accepted plaintiff's offer to purchase the premises; e.g., emails, contracts, agreements, writings, proposals, bids or offers." In opposition, plaintiff contends that "there was meeting of the minds on the contract to sell the property through a series of emails which resulted in a contract signed by plaintiff and a check for the down payment as agreed upon being sent to defense counsel." In support of this contention, plaintiff proffers a series of email correspondences between counsel for the respective parties from September 16 to October 2, 2013. Notwithstanding plaintiff's contentions to the contrary, the aforementioned email correspondences in the instant matter do not satisfy the Statute of Frauds subscription requirement.
The Supreme Court pointed out,
[A]ssuming arguendo, that an e-mail is sufficient to comply with the statute of frauds with respect to contracts for the conveyance of real property (citations omitted), the document in issue here nevertheless is clearly inadequate, since it was not subscribed, even electronically, by the defendants who are the parties to be charged, or by anyone purporting to act on their behalf (citations omitted)." Leist v. Tugendhaft , 64 AD3d 687, 688 (2nd Dept., 2009). Defense counsel's printed name at the end of her email correspondences are contained in two emails dated September 16 and 26, 2013. The September 16 email states, pertinently, "attached is a proposed contract of sale." The September 26 email states, in relevant part, that defendant needs to close in 30 days and has a second offer from another prospective purchaser offering to pay $50,000.00 more to close in 45 days. The email further states that "if [plaintiff] is willing to pay $50,000.00 more for the property, close in 60 days, time of the essence, we can sign the contract today. Let me know." The remaining emails, which appear to contain the essential terms of a complete agreement, only contain the printed name of plaintiff's counsel and noticeably absent is the name or subscription of defense counsel. Consequently, the subject emails do not satisfy the Statute of Frauds subscription requirement and are inadequate, since they were not electronically subscribed by defendant, or by defense counsel, with purported authority to act on defendant's behalf. Thus, this Court is constrained to grant the motion for dismissal.
In Pinnacle Realty of New York, LLC v 255 Butler, LLC , 125 AD3d 952, 953 [2d Dept 2015], the court wrote, "The parties’ submissions, which included printouts of emails and drafts of contracts, established that the defendants and the prospective purchaser did not come to a meeting of the minds as to the essential terms of the sale...."
This inquiry reveals that while the Second Department usually will not consider emails as documentary evidence on a CPLR 3211 motion, on a few occasions it relaxed its rules based on the particular circumstances.
This Court finds that the emails submitted herein must be considered because they fall within the ambit of the Second Department's axiom that to constitute documentary evidence, as referred to in CPLR 3211, the evidence must be unambiguous, authentic, and undeniable (see Xu v Van Zwienen ; Fontanetta v Doe , 73 AD3d 78 [2d Dept 2010] ). The emails here are. Therefore, this Court will consider the emails herein where dismissal is sought pursuant to CPLR 3211 and the Court converted this into motions for summary judgment. Likewise, the submitted Silverman-to-Myrtle Contract, submitted by the parties, is considered.
Silverman-to-Myrtle Contract
" ‘To establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound ( 22 NY Jur. 2d, Contracts § 9 ). That meeting of the minds must include agreement on all essential terms (id. at 31)’ ( Kowalchuk v. Stroup, 61 AD3d 118, 121 [1st Dept 2009] )." ( Kolchins v Evolution Markets, Inc. , 128 AD3d at 59.)
"[I]f the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed" ( Scheck v Francis , 26 NY2d 466 [1970] ["It appears quite clear, from Mr. Levin's letter alone, that the agreements were to take effect only after both parties had signed them."].
Moulton Paving, LLC v Town of Poughkeepsie (98 AD3d 1009 [2d Dept 2012] ) provides guidance in applying this principle. The contract at issue provided: " ‘The agreement, as tendered, shall in no way be construed to be a binding agreement, nor shall it in any way be considered or identified as an instrument or document of intent upon the part of Marquise[.... O]nly upon complete execution of the Subcontract Agreement by an officer of Marquise ..., and the subsequent delivery thereof, is the Agreement considered to be effective and a binding agreement’ ( 98 AD3d at 1011 )." The court continued, "This clear language established Marquise's intent, as a matter of law (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn. , 32 NY2d at 291 ; ADCO Elec. Corp. v HRH Constr., LLC , 63 AD3d at 654 ; Berghold v Kirschenbaum , 287 AD2d at 673 ), that it not be bound and not be held liable under the agreement unless and until it was signed by Marquise (see Municipal Consultants & Publs. v Town of Ramapo , 47 NY2d at 148 ; Scheck v Francis , 26 NY2d at 469-470 ; ADCO Elec. Corp. v HRH Constr., LLC , 63 AD3d at 654 ; Lost Cr. Assoc. v Marine Midland Bank , 293 AD2d at 720 ). Since it is undisputed that the agreement was never signed by either party, the Marquise defendants established conclusively, as a matter of law, that there was no contract in existence at the time of the alleged breach." ( Id. at 1011-1012.)
Similarly, in case at bar, the Silverman-to-Myrtle Contract contained the following in paragraph 28: "(e) This contract shall not be binding or effective until duly executed and delivered by Seller and Purchaser" (NYSCEF Doc No. 56 at 5). The contract bears the signature of Jacob Kohn, Myrtle's managing member, on the very same page containing paragraph 28. In so signing, Mr. Kohn acknowledged on behalf of Myrtle that there was no binding contract unless and until both the prospective seller and prospective buyer had signed it. In paragraph 29 of one of the riders it provided, "This contract shall not be construed as an offer to sell by the Seller herein until the Seller has agreed to all of the terms and conditions of same by signing said contract" (NYSCEF Doc No. 56 at 15). The very same page bears the signature of Jacob Kohn. In so signing that page, Mr. Kohn acknowledged that there was no binding contract unless and until he and Silverman signed it.
The following two emails evidence that Lichtman, Myrtle's attorney, realized there was no contract yet, i.e., no mutual assent:
July 11 (10:27 AM) — Lichtman to Schmelczer:
Did the seller sign yet?
July 12 (4:05 PM) - Lichtman to Elbogen, Newman:
Marc,
Can we finish this deal?
Moreover, at the outset of the negotiations, on June 23, 2022, the paralegal Schmelczer in Silverman's attorney's office, emailed Myrtle's attorney Newman that "until you receive fully executed copies, there is no offer or obligation by seller." That the Silverman-to-Myrtle Contract was not a binding one is evidenced by a July 6, 2022 email from Schmelczer to Lichtman that "If we do not have a signed contract by email and confirmation that you initiated the wire by 12 noon today, Mr. Newman has been instructed to open discussions with another buyer."
Silverman relies on the foregoing documentary evidence for its contention that there was no binding contract. Myrtle, however, claims differently. It essentially argues several points: (1) Myrtle and Silverman agreed upon all of the terms and conditions for the sale of the property. (2) Although the June 23rd email stated a condition, "Please be advised that our client has not reviewed the contract and, accordingly, until you receive fully executed copies, there is no offer or obligation by seller," this was superseded by later emails, including Newman's July 6th "ok ... ty," which finalized all of the terms and conditions of the parties’ agreement and demanded the down payment. These later emails did not contain the condition. (3) Having accepted the $475,000 deposit and keeping it for a week demonstrated that Silverman entered into a binding contract. (4) Appellate case law supports Myrtle's position. These points are set forth in Myrtle's memorandum of law (NYSCEF Doc Nos. 21, 41).
For the reasons heretofore explained, the first three arguments are rejected. The email exchange does not establish that Silverman at any time waived its June 23rd condition that until it signed, "there was no offer or obligation by seller." The email exchange establishes that through July 7, the parties were not in accord over all the material provisions. On July 7, Lichtman himself was quibbling over the terms for allocating the purchase price between the buildings, which was a provision in the rider he prepared.
Newman's July 6th "ok ... ty" merely acknowledged receipt of signed contracts and wired funds. But as evident from the next day's emails, there was no final meeting of the minds because the parties were haggling over the rider provision regarding the allocation of the purchase price between the two buildings. "OK" does not necessarily signify that there is a binding contract (see Stockland Martel, Inc. v Donald J. Pliner of Florida, Inc. , 32 AD3d 779 [1st Dept 2006] ).
Taking possession of the wired $475,000 does not reflect that there was a binding contract. There is case law holding that there was no binding contract despite a prospective seller's receipt of a down payment (e.g. , Francesconi v Nutter , 125 AD2d 363 [2d Dept 1986] ; S.S.I. Investors Ltd. v Korea Tungsten Min. Co., Ltd. , 80 AD2d 155 [1st Dept 1981] [deposit retained for nine days]).
Myrtle cited to several cases for the proposition that although an earlier email contains language qualifying a contract upon certain conditions, a later email omitting the qualification can lead to an agreement. The first case cited to by Myrtle is Aristone Realty Capital, LLC v 9 E. 16th Street, LLC (94 AD3d 519 [1st Dept 2012] ). Myrtle argues that this case is "on all fours with ours" (NYSCEF Doc No. 21 at 7, memorandum of law). It cited the case also in oral argument on March 29, 2023. This Court rejects Myrtle's argument. The earlier email in Aristone contained language that the proposed contract was subject to the seller's "review and modification." In the case at bar, the earlier (June 23) email contained language emphatically stating that "until you receive fully executed copies, there is no offer or obligation by seller." Reviewing and modifying a contract are not the same as conditioning a binding contract on the seller's executing it. Moreover, the qualification in the instant case was set forth in the contract itself and in a rider to it , both of which were signed by Jacob Kohn on behalf of Myrtle; Aristone involved just a prior email containing a qualification. In any event, Moulton Paving, LLC v Town of Poughkeepsie , discussed above and holding that an agreement is not binding until signed if a provision therein provides such, controls the facts of the instant case since it is a Second Department decision (see Mountain View Coach Lines, Inc. v Storms , 102 AD2d 663 [2d Dept 1984] ).
Myrtle also cited in its memorandum of law and at oral argument to PMJ Capital Corp. v PAF Capital, LLC (98 AD3d 429 [1st Dept 2012] ). In that case, a bid form included a provision that the parties would have no contractual obligations with respect to the proposed purchase of the loans unless and until a loan sale agreement, prepared by the lender, was executed and delivered by both parties. Later on, after the purchaser emailed that the agreement had been signed and the down payment would be sent via wire transfer, the seller responded by email, "Terrific. Thanks! I will counter sign upon receipt. Here's to a smooth and successful completion of this transaction." Such language is different from the email language Myrtle relies on, to wit, the July 7th 11:59 AM email from Schmelczer, "Please confirm that the revisions are acceptable and that the balance of the deposit has been wired so that we can firmly be in contract today." In fact, the revisions were not acceptable to Lichtman, who was upset that paragraph 9 of his rider had been changed; this disagreement over paragraph 9 continued throughout the day, as evidenced by emails (see above) at 12:02 PM, 12:42 PM, 12:52 PM, 12:58 PM, and 1:30 PM. No email from Silverman's side conclusively established that Silverman deemed the transaction successfully completed (cf. PMJ Capital Corp. v PAF Capital, LLC ).
In the instant situation, the actual contract itself contained the qualification of there being no offer and no binding contract until the seller executed it, and Jacob Kohn signed the very page on which the qualification was printed; he also signed the very page in Silverman's rider containing the qualification (NYSCEF Doc No. 36 at 5, 15; NYSCEF Doc No. 56 at 5, 15). This compelling fact also distinguishes PMJ Capital Corp. from the case at hand (see Keitel v E*TRADE Financial Corp. , 153 AD3d 1181 [1st Dept 2017] [reliance on PMJ Capital Corp. is misplaced where qualifying language in term sheet required execution of formal written agreement]). And again, in the Second Department, Moulton Paving, LLC v Town of Poughkeepsie controls.
Oster v Castel , 2016 WL 4991255 (Sup Ct, NY County 2016), cited by Myrtle, involved a situation where the seller's attorney wrote "looks good," in an email. This is but another instance where there was no written provision in the contract whereby the seller retained the qualification that unless it signed the contract there was no offer and no binding contract. Oster v Castel does not actually support Myrtle's position (see Keitel v E*TRADE Financial Corp. ; Mayo v NYU Langone Med. Ctr. , 2018 WL 6790246 [Sup Ct, NY County 2018] ).
In reviewing the documentary evidence, this Court finds that Silverman established as a matter of law that there was no mutual assent and intent that it be bound by the Silverman-to-Myrtle Contract unless and until Silverman signed it. The facts here are similar to those in 42nd Avenue Commons, LLC v Barracuda, LLC. Like in that case, here there was an email from Paralegal Schmelczer to Lichtman enclosing a contract (June 23). Like in that case, there even was an email emphasizing the need to close out the matter because there was another purchaser waiting in the wings (July 6, 11:06 AM).
The July 7th email exchange between Schmelczer and Lichtman clearly proves that they were still negotiating concerning an essential term of a rider to the contract, to wit, how the purchase price would be allocated among the two buildings constituting the property. In the 1:30 PM email from Lichtman to Schmelczer, Lichtman wrote, "Add the word reasonable and we are good to go," but Silverman never assented to this. Lichtman took it upon himself to add "reasonable" to paragraph 9 of his rider (NYSCEF Doc No. 36 at 7; NYSCEF Doc No. 56 at 7), and at 4:42 PM he sent that rider, with Kohn's signature, to Schmelczer. There was no response to this by anyone for the Silverman side, evidencing that this was unacceptable. In fact, it appears that Newman and his assistant (perhaps Schmelczer) left town for the weekend, as per the text messaging between Lichtman and Kohn.
Without there being a meeting of the minds between Myrtle and Silverman—if the attorneys were deemed to be agents of their principals—there cannot be a binding agreement. And since there was none, this accounts for the fact that Silverman never signed the contract, a sine qua non, as per the contract, the Silverman-prepared rider, and the June 23rd email. There was no mutual assent and no intent by Silverman to be bound. That being the case, Silverman was within its rights to negotiate with Franklin and execute a contract to sell the property to it, which is what it did on July 12 (the Silverman-to-Franklin Contract).
Myrtle is not entitled to specific performance of the Silverman-to-Myrtle Contract, but it is entitled to return of its $475,000 down payment.
Counsel's Authority to Bind Silverman
Silverman argued herein also that its counsel had no authority to bind it to the contract. This argument is academic in light of the determination herein that there was no mutual assent and no intent to be bound, inasmuch as Silverman did not sign the contract. In any event, this Court finds that the statute of frauds was not satisfied in order to create a binding contract because there is no evidence in the record to establish that Silverman's attorney, Mr. Newman—or his paralegal Schmelczer—had been authorized to bind Silverman. An agent may only bind a party to a real estate contract if authorized in writing to do so (see 42nd Avenue Commons, LLC v Barracuda, LLC [emails exchanged by parties’ attorneys established that parties did not intend to be bound until signing of formal contract of sale]; Gold v Vitucci , 168 AD2d 607 [2d Dept 1990] ).
Cancellation of the Notice of Pendency and Costs and Expenses
Silverman's motion included the requested relief of discharging the notice of pendency docketed by Myrtle against the subject property and awarding Silverman attorney's fees, costs of suit, and positive expenses caused by wrongfully docketing it (NYSCEF Doc No. 61). Silverman relied on CPLR 6514 (c) : "The court, in an order cancelling a notice of pendency under this section, may direct the plaintiff to pay any costs and expenses occasioned by the filing and cancellation, in addition to any costs of the action."
In Saul v Vidokle , cited above in connection with the acceptance of email correspondence on a motion, the Appellate Division held that "because there was no binding real estate contract between the parties, the plaintiff's notice of pendency pertaining to the property should have been cancelled, and the defendant awarded costs and expenses occasioned by the cancellation (see CPLR 6514[a], [c] ). The defendant is not, however, entitled to recover ‘any costs of the action’ pursuant to CPLR 6514(c), as he did not provide any documentation to establish the costs he incurred in defending the action. Moreover, because the action cannot be deemed to be completely without merit (cf. e.g. Miller v. Cruise Fantasies, Ltd., 74 AD3d 919, 921, 903 N.Y.S.2d 481 ), the Supreme Court properly, in effect, denied that branch of the defendant's motion which was for an award of sanctions and attorney's fees pursuant to 22 NYCRR 130-1.1. [¶] Accordingly, we remit the matter to the Supreme Court, Kings County, for a determination of the award of costs and expenses occasioned by the filing and cancellation of the notice of pendency pursuant to CPLR 6514(c)." ( 151 AD3d at 781-782.)
Since judgment against Myrtle on the issue of specific performance has been granted, the notice of pendency must be cancelled ( CPLR 6514 [b] ; see Saul v Vidokle ).
In the instant case, Silverman failed to make an evidentiary proffer as to costs it incurred in defending the action or as to its attorney's fees or expenses. Therefore, this Court finds that awarding them is not warranted (see Saul v Vidokle) . Moreover, with respect to costs and expenses occasioned by the filing and cancellation of the notice of pendency, this Court notes that Silverman entered into a contract with Franklin, at a price which is $200,000 more than that in the contract with Myrtle. This may be factored into account although it would not constitute a setoff against damages sustained while the notice of pendency was in effect (see Tucker v Mashomack Fish and Game Preserve Club, Inc. , 199 AD2d 957 [3d Dept 1993] ).
Notably, the word "may" appears in CPLR 6514 (c), rendering an award of costs and expenses a matter of the court's discretion ( Ricca v Ricca , 15 Misc 3d 1115(A), 2007 NY Slip Op 50700(U) [Sup Ct, Suffolk County 2007] ). The award of costs and expenses is not mandatory every time a notice of pendency is cancelled (e.g. , DeCaro v East of East, LLC , 95 AD3d 1163 [2d Dept 2012] ; Weiner v MKVII-Westchester, LLC , 292 AD2d 597 [2d Dept 2002] ; Rabinowitz v Larkfield Bldg. Corp. , 231 AD2d 703 [2d Dept 1996] ; Praver v Remsen Associates , 181 AD2d 723 [2d Dept 1992] ; Phillip v Zanani , 21 Misc 2d 1130(A), 2008 NY Slip Op 52285(U) [Sup Ct, Kings County 2008] ).
Taking into account the lack of an evidentiary proffer as to actual costs and expenses, including its attorney's fees) and that Silverman was able to sell the subject property at a higher price, this Court finds that Silverman is entitled neither to costs and expenses occasioned by the filing and cancellation of the notice of pendency nor to costs of the action.
Conclusion
Accordingly, it is hereby ORDERED as follows:
(1) Franklin Energy LLC's motion to intervene as a Defendant is DENIED.
(2) Defendant Silverman-Shaw Inc.’s motion is converted to a motion for summary judgment dismissing and striking Plaintiff 590 Myrtle LLC's complaint; discharging the notice of pendency Plaintiff filed against the property; awarding Defendant attorney's fees, costs of suit, and positive expenses caused by the filing of the notice of pendency; and granting other and further just relief.
(3) Plaintiff 590 Myrtle LLC's papers in opposition to the motions of Defendant Silverman-Shaw Inc. and Proposed Intervenor Franklin Energy LLC are deemed to constitute a cross-motion for summary judgment ordering Defendant to specifically perform the Silverman-to-Myrtle Contract and consummate the sale of the subject property to Plaintiff, but in the event said relief is not granted, ordering Defendant to immediately return to Plaintiff the $475,000 down payment plus prejudgment interest thereon; and granting Plaintiff such other and further relief as the court deems just and proper.
(4) Summary judgment is GRANTED in part to Plaintiff to the extent hereinafter set forth and otherwise DENIED.
(5) Summary judgment is GRANTED in part to Defendant to the extent hereinafter set forth and otherwise DENIED.
(5) Plaintiff 590 Myrtle LLC shall provide wire transfer instructions to Defendant Silverman-Shaw Inc. by 12:00 Noon, April 4, 2023, for the return of its $475,000 down payment, and the Defendant shall wire the return of the $475,000 down payment, without interest thereon, to the Plaintiff within 24 hours after receipt of the wire transfer instructions.
No interest is due from Defendant Silverman-Shaw Inc. to Plaintiff 590 Myrtle LLC because Plaintiff never provided the wire transfer instructions sought as per the July 14, 2022 email from Meltzer to Lichtman.
Inasmuch as it is found that the Silverman-to-Myrtle Contract was not a legally binding and effective one, Plaintiff 590 Myrtle LLC is entitled to the return of the $475,000 down payment. However, this Court notes that the Passover holiday commences around 7:00 PM, Wednesday night, April 5, 2023. To avoid delaying return of the down payment past the holiday, the practically immediate deadline for returning it is imposed (see People v Robinson, 63 AD3d 531 [1st Dept 2009] ; People v Paulino , 287 AD2d 302 [1st Dept 2001] ; People v Berger , 234 AD2d 980, 981 [4th Dept 1996] ).
(6) Plaintiff 590 Myrtle LLC's complaint is dismissed to the extent that it sought to compel Defendant Silverman-Shaw Inc. to specifically perform the Silverman-to-Myrtle Contract and consummate the sale of the subject property.
(7) The Kings County Clerk shall cancel the notice of pendency which Plaintiff 590 Myrtle LLC filed on or about August 22, 2022, against the subject property, to wit, 60, 62, 64, and 66 Franklin Avenue, Brooklyn, New York (Block 1884, Lots 68 and 69).
(8) Defendant Silverman-Shaw Inc. shall not recover any costs, expenses, or attorney's fees occasioned by the filing and cancellation of the notice of pendency; and neither shall it recover any costs, expenses, or attorney's fees related to this action.