Opinion
03-26-2024
EXTENDED CHHA ACQUISITION, LLC, Plaintiff–Respondent, v. Lenore MAHONEY, Defendant–Appellant, Claudia Taglich et al., Defendants.
Wollmuth Maher & Deutsch LLP, New York (David H. Wollmuth of counsel), for appellant. Gutnicki LLP, Skokie, IL (John E. Zummo of the bar of State of Illinois, admitted pro hac vice, of counsel), and Leader Berken Colao & Silverstein LLP, New York (Michael J. Tiffany of counsel), for respondent.
Wollmuth Maher & Deutsch LLP, New York (David H. Wollmuth of counsel), for appellant.
Gutnicki LLP, Skokie, IL (John E. Zummo of the bar of State of Illinois, admitted pro hac vice, of counsel), and Leader Berken Colao & Silverstein LLP, New York (Michael J. Tiffany of counsel), for respondent.
Singh, J.P., Moulton, Friedman, Scarpulla, O’Neill Levy, JJ.
Order, Supreme Court, New York County (Andrew Borrok, J.), entered November 9, 2023, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
Given this Court’s decision on defendants’ sellers’ prior appeal (Extended CHHA Acquisition, LLC v. Mahoney, 215 A.D.3d 18, 187 N.Y.S.3d 187 [1st Dept. 2023]), Supreme Court correctly denied defendants’ unsanctioned motion for summary judgment (see Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept. 2012]; Kenney v. City of New York, 74 A.D.3d 630, 630–631, 903 N.Y.S.2d 53 [1st Dept. 2010]). Even looking to the substance of defendants’ motion again, defendants’ arguments are meritless.
This Court previously found that there was no dispute that defendants validly terminated the Membership Interest Purchase Agreement on March 22, 2021, as pursuant to a revised rescission notice, plaintiff buyer was required to transfer the $49 million purchase price on or before March 29, 2021 at 5:00 p.m., which plaintiff failed to do (Extended CHHA Acquisition, LLC, 215 A.D.3d at 31–32, 187 N.Y.S.3d 187). Contrary to defendants’ contention, however, this Court addressed the consequences of the March 22, 2021 termination notice in light of the parties’ subsequent conduct. Specifically, this Court went on to find that Supreme Court correctly denied defendants’ motion to dismiss the specific performance claim (id.). As reflected in this Court’s decision, issues of fact precluded a finding that time was or was not of the essence to close the Purchase Agreement and whether defendants’ refusal to grant plaintiff's requested one-day adjournment was done in bad faith to frustrate the closing (id. at 39, 187 N.Y.S.3d 187).
We have considered defendants’ remaining arguments and find them unavailing.