Opinion
No. 506401/2013.
12-15-2014
HEIGHTS PROPERTIES 1388 LLC, Plaintiff, v. MAKE REALTY CORP. and Irvine J. Thomas, Defendants.
Mark Kranz, Esq., Suslovich & Klein LLP, Brooklyn, NY, Attorneys for Plaintiff. Paul Golden, Esq., Hagan, Coury & Associates, Brooklyn, NY, Attorney for Defendants.
Mark Kranz, Esq., Suslovich & Klein LLP, Brooklyn, NY, Attorneys for Plaintiff.
Paul Golden, Esq., Hagan, Coury & Associates, Brooklyn, NY, Attorney for Defendants.
Opinion
CAROLYN E. DEMAREST, J.
The following papers e-filed herein:
| Papers | Numbered |
|---|---|
| Notice of Motion/Order to Show Cause/ | Petition/Cross Motion and |
| Affidavits (Affirmations) Annexed | 22–39 |
| Opposing Affidavits (Affirmations) | 45–58 |
| Reply Affidavits (Affirmations) | 59, 61–63 |
| Affidavit (Affirmation) | |
| Plaintiff's Reply Memorandum of Law | 60 |
In this action by plaintiff Heights Properties 1388 LLC (plaintiff) against defendants Make Realty Corp. (Make Realty) and Irvine J. Thomas (Irvine), plaintiff moves, under motion sequence number two, for an order, pursuant to CPLR 3212, granting it summary judgment in its favor on its first, fifth, and sixth causes of action in its amended complaint.
BACKGROUND
Make Realty was formed by a certificate of incorporation dated May 19, 1981 and filed on May 22, 1981 with the State of New York, Department of State. The certificate of incorporation stated that the purpose for which Make Realty was formed was to own, operate, manage, acquire, and deal in real property. Keith B.P. Thomas (Keith) and Mable B. Thomas (Mable), who were husband and wife, were Make Realty's initial shareholders, and, as evidenced by stock certificates dated June 19, 1981, Keith was the owner of 50 shares of stock of Make Realty and Mable was the owner of the other 50 shares of stock of Make Realty, which were issued at no par value. An organizational meeting of Make Realty was held on June 19, 1981 by Keith and Mable, as the incorporators, and Keith and Mable were elected as Make Realty's directors. Upon being elected as the directors, Keith was then elected as the president of Make Realty and Mable was elected as the secretary of Make Realty.
At the organizational meeting of Make Realty, bylaws regulating the conduct of the business and affairs of Make Realty were prepared and adopted. Article II, section 11, of Make Realty's bylaws, entitled “Written Consent of Shareholders,” provided as follows:
“Any action that may be taken by vote may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all the outstanding shares entitled to vote thereon or signed by such lesser number of holders as may be provided for in the certificate of incorporation.”
The certificate of incorporation did not provide for any lesser number of holders to sign such written consent. Article IV, section 5, of Make Realty's bylaws, entitled “Secretary,” described the secretary's duties, which included attending all meetings of the board and of the shareholders, recording all votes and minutes of all proceedings in a book to be kept for that purpose, giving notice of all meetings of the shareholders and of special meetings of the board, affixing the seal of the corporation when authorized by the board, preparing a certified list of the name of shareholders entitled to vote at each meeting of the shareholders, and keeping all documents and records of the corporation as required by law. Significantly, it did not authorize the secretary to execute contracts of sale or rights of first refusal for Make Realty.
On January 16, 1985, Keith resigned as president of Make Realty. Mable then became president of Make Realty, and Irvine, who is the son of Mable and Keith, became its secretary. Keith died intestate in 1992, and, pursuant to EPTL 4–1.1, half of his shares in Make Realty went to Mable (resulting in her having 75% of its shares) and the other half of his shares were divided among his five adult children, including Irvine, resulting in each of them having 5% of Make Realty's shares. On September 28, 1994, Make Realty was dissolved by proclamation/annulment of authority.
Plaintiff is a limited liability company whose two members are Boruch Okounev (Okounev) and Howard Eiferman (Eiferman). According to an affidavit by Jacqueline Jackson, who was the property consultant for Make Realty, she met Okounev in July 2013, and he informed her that plaintiff was interested in buying Make Realty's real property, which is located at 1358 St. Johns Place, in Brooklyn, New York (the 1358 St. Johns Place property). On September 23, 2013, Okounev referred Make Realty to Michael Apisiga, Esq. (Mr. Apisiga), who she and Irvine met at this law office in connection with representing Make Realty in the sale of the 1358 St. Johns Place property to plaintiff. Ms. Jackson states that Okounev stated that he would pay Mr. Apisiga's attorney's fee in connection with the contract and closing.
On September 24, 2013, a contract for the sale of the 1358 St. Johns Place property (the Contract of Sale) was purportedly entered into between Make Realty (who listed its own address therein as being that of the 1358 St. Johns Place property) and plaintiff. The Contract of Sale set forth that the purchase price for the 1358 St. Johns Place property was $700,000, and that a down payment of $35,000 was made by plaintiff. Section 10 of the Contract of Sale, entitled “Seller's Closing Obligations,” required, in section10.16 thereof, that “[i]f Seller is a corporation and if required by Section 909 of the Business Corporation Law, [it was required to deliver to plaintiff at the closing] a resolution of Seller's board of directors authorizing the sale and delivery of the deed and a certificate executed by the secretary or assistant secretary of Seller certifying as to the adoption of such resolution and setting forth facts showing that the transfer complies with the requirements of such law.” The Contract of Sale was executed by Irvine, on behalf of Make Realty, and by Okounev, on behalf of plaintiff.
As part of this same transaction and as part of the consideration to be given in the purchase price for the 1358 St. Johns Place property, Make Realty simultaneously purportedly entered into a Right of First Refusal Agreement, also dated September 24, 2013 (the Right of First Refusal Agreement). The Right of First Refusal Agreement granted plaintiff the right first refusal with respect to property located at 1362 St. Johns Place and property located at 1366 St. Johns Place, in Brooklyn, New York, which were the remaining properties owned by Make Realty (collectively, the Other Properties), and were mixed use apartment buildings that neighbored the 1358 St. Johns Place property. The Right of First Refusal Agreement, like the Contract of Sale for the 1358 St. Johns Place property, was executed by Irvine, on behalf of Make Realty, and by Okounev, on behalf of plaintiff.
Following the execution of the Contract of Sale and the Right of First Refusal Agreement, plaintiff ordered a title commitment. The title commitment received from Madison Title Agency, LLC (Madison Title) set forth certain exceptions from coverage which would appear in the policy unless disposed of to its satisfaction prior to the closing or the deliver of the policy. Title exception number 27 provided that the articles of incorporation and bylaws of Make Realty must be produced and reviewed, and that additional exceptions may be raised by Madison Title upon its review of them, and that there must also be proof given that there has been no change in the make-up or composition of Make Realty. This exception further provided that proof was required that the party or parties executing instruments on behalf of Make Realty had the authority to so act. Title exception number 28 provided that if the present transaction consisted of a conveyance by a corporation and its certificate of incorporation so required, Madison Title required “the written consent thereto by the holders of the outstanding shares of the corporation and the instrument on closing should so recite.” It further stated that “[i]n lieu thereof, the consent of the holders of two-thirds of all the outstanding shares entitled to vote thereon obtained at a meeting duly noticed and called for the purpose of obtaining such consent in the manner called for in Section 605 of the Business Corporation Law is required and the instrument on closing should so recite.” It set forth that if neither of these requirements were obtained, then the “proofs showing the basis upon which the conveyance ... [wa]s to be made must be submitted to counsel prior to closing.” Upon receipt of the title report, plaintiff's attorney, Mark Nussbaum, Esq. (Mr. Nussbaum), scheduled a closing with Mr. Apisiga, scheduling the closing for October 11, 2013, at which time he expected that the documentation necessary to clear the open title exceptions would be produced by Make Realty and that these exceptions would be omitted.
According to Irvine, despite the stated purpose of Make Realty in its certificate of incorporation, Make Realty had never actually sold property before. At the closing, Irvine produced a Corporate Resolution (the Corporate Resolution) dated October 6, 2013, which was signed by Mable and him, in their respective capacities as the president and the secretary of Make Realty. The Corporate Resolution stated that Mable and Irvine, as members of Make Realty, agreed and resolved: (1) that there were only two shareholders and members of Make Realty still living, (2) that the 1358 St. Johns Place property should be sold, and that all other properties belonging to Make Realty should also be sold so that Make Realty would be “officially dissolved thereafter,” (3) that they authorized Irvine, as the secretary of Make Realty, to represent it and to execute any documents necessary to facilitate the sale of its properties, and that this constituted the entire decision of the remaining members of Make Realty.
Madison Title, at the scheduled closing on October 11, 2013, requested assurances from Make Realty that the sale of the 1358 St. Johns Place property had been properly authorized by it, and it did not accept the Corporation Resolution as satisfactory proof to omit its title exceptions. It required documentation that Keith had died and was married to Mable at the time of his death. The closing was, therefore, aborted in order for Make Realty to produce Keith's death certificate.
An e-mail from Mr. Apisiga, dated Monday, October 14, 2013, informed Mr. Nussbaum that after Irvine was informed by the title company that Make Realty was dissolved in 1994 and after the closing failed to take place on Friday, October 11, 2013, he realized that he could not do anything with the 1358 St. Johns Place property without his siblings' involvement and having them sign off on the deed. He stated that after Irvine disclosed what he intended to do with the 1358 St. Johns Place property to his brothers and sisters, they refused to cooperate with him, and he was not going to be able to convey title to plaintiff without their cooperation. A second e-mail from Mr. Apisiga to Mr. Nussbaum stated that in response to his question as to when they could close, he had received a call from Irvine that he would not be able to transfer title because he had siblings with whom he had met over the weekend to get them to sign off on the deed, but they declined and he could not transfer title by himself.
Plaintiff asserts that, without Make Realty's assistance, it was able to obtain a copy of Keith's death certificate, which shows that Mable is his surviving spouse. It further asserts that Madison Title is now prepared to insure title to the 1358 St. Johns Place property and it has attached a letter, dated April 3, 2014, from Madison Title as exhibit E to its motion. Madison Title's letter states that it is working to clear title for plaintiff, that plaintiff had now produced a copy of the death certificate that it had required, and that this file is now cleared to close, subject to standard exceptions customarily resolved at closing. Madison Title noted, in this letter, that “[i]n addition, there is the possibility that other exceptions might be raised on a continuation search which will be made at the time of closing.”
Okounev asserts that after the failed closing, he learned that all three properties (i.e., the 1358 St. Johns Place property and the Other Properties) were listed for sale with a real estate broker, and he has attached a copy of the listing flyer, which stated that the three contiguous four-story walk-up apartment buildings were for sale at an asking price of $3,800,000. He states that when he inquired about this listing, he was told that Make Realty had already entered into contracts to sell all three of these properties to third parties, and that he later learned that David Goldwasser was the principal of the entities who contracted to purchase these three properties and that the contracted purchase price was $700,000 for each of them.
On October 23, 2013, plaintiff filed this action against Make Realty and Irvine, and also filed a notice of pendency against the 1358 St. Johns Place property and the Other Properties. Plaintiff's complaint, as amended, alleges six causes of action. Plaintiff's first cause of action alleges that Make Realty did not provide the documents required to be provided by it in accordance with section 10.16 of the Contract of Sale for the sale of the 1358 St. Johns Place property, and that Make Realty has breached the Contract of Sale. It seeks specific performance of the Contract of Sale. Plaintiff's second cause of action seeks damages for breach of contract. Plaintiff's third cause of action seeks the return of its down payment of $35,000 if it is not entitled to specific performance. Plaintiff's fourth cause of action demands damages against Irvine based upon his representation that he had the requisite authority to sign the Contract of Sale and bind Make Realty. Plaintiff's fifth cause of action seeks a declaratory judgment that it is the holder of a right of first refusal on the Other Properties. Plaintiff's sixth cause of action alleges that Make Realty did not notify it prior to entering into a contract with a third party to sell the Other Properties nor did it give it an opportunity to purchase these properties on the same terms as offered by the third party. It seeks specific performance of its right of first refusal with respect to the Other Properties. Plaintiff's seventh cause of action seeks damages against Irvine based upon his representation that he had the requisite authority to bind Make Realty with respect to the Right of First Refusal Agreement.
Make Realty and Irvine interposed an answer dated May 28, 2014, asserting affirmative defenses and counterclaims. Plaintiff has served a reply to the answer. The contracts entered into by Make Realty for the sale of the three properties to the third parties have been cancelled as of December 6, 2013 due to the filing of plaintiff's notice of pendency in this action.
On June 10, 2014, plaintiff e-filed its instant motion for summary judgment on its first, fifth, and sixth causes of action, which are asserted solely against Make Realty. Make Realty opposes plaintiff's motion. Although Make Realty and Irvine have not cross-moved for summary judgment, they request, in Irvine's affidavit in opposition, summary judgment dismissing plaintiff's claims against them.
DISCUSSION
Make Realty has submitted the affidavit of Irvine, who explains that he signed the Corporate Resolution in error since under EPTL 4–1.1, he and his siblings inherited half of the shares of their father, Keith, upon his death, and that his siblings have never consented or approved of the Contract of Sale or the Right of First Refusal Agreement. Make Realty has submitted the sworn affidavits of three of Irvine's four siblings, i.e., Keith J.P. Thomas, Jr., Carolyn Jack, and Calistra Bradley, who each attest that half of Keith's shares in Make Realty passed to them and their four siblings in equal parts, and that they did not sign, consent, or approve of the Contract of Sale or the Right of First Refusal Agreement.
Make Realty contends that the Contract of Sale and the Right of First Refusal Agreement are, therefore, not valid or enforceable under article II, section 11, of Make Realty's bylaws since with respect to the actions of selling the 1358 St. Johns Place property and of granting the right of first refusal to plaintiff, no meeting of the shareholders was held and there was no written consent signed by all the shareholders.
Plaintiff argues that the Contract of Sale is nevertheless binding upon Make Realty because Irvine signed it as the secretary of Make Realty, and did so with the written authorization and consent of Mable, its president, as evidenced by the Corporate Resolution. It cites to the legal principle that “contracts on behalf of ... a corporation which are made in the regular course of its business may validly be executed by the corporation's president” (Fromkin v. Merrall Realty, 15 AD3d 919, 920 [2d Dept 1962], appeal denied 11 N.Y.2d 647 [1962] ). Plaintiff's reliance upon this legal principle, however, is misplaced since the Contract of Sale was not executed by Make Realty's president, Mable, but by Irvine, its secretary. As noted above, the powers of the secretary were delineated in, and circumscribed by article IV, section 5, of Make Realty's bylaws, which did not include the execution of a contract for the sale of real property.
While plaintiff asserts that the action of entering into the Contract of Sale was authorized by Mable, as Make Realty's president, in the Corporate Resolution, and, therefore, was permissible as a contract entered into in the regular course of business with the authorization of the president, the Corporate Resolution, on its face, demonstrates that this was not simply a sale in the regular course of business since it expressly stated that the 1358 St. Johns Place property was being sold and all other properties belonging to Make Realty (i.e., the 1358 St. Johns Place property and the Other Properties) were intended to be sold so that Make Realty would be “officially dissolved thereafter.” Moreover, as previously noted, article II, section 11, of Make Realty's bylaws specifically prohibited actions taken without the written consent of all of the shareholders, rendering the entry into the Contract of Sale, without such written consent, in derogation of and in blatant violation of Make Realty's bylaws.
Furthermore, the Contract of Sale and the Right of First Refusal Agreement fail to comply with the procedure set forth in Business Corporation Law § 909(a), which provides as follows:
“A sale, lease, exchange or other disposition of all or substantially all the assets of a corporation, if not made in the usual or regular course of the business actually conducted by such corporation, shall be authorized only in accordance with the following procedure:
(1) The board shall authorize the proposed sale, lease, exchange or other disposition and direct its submission to a vote of shareholders.
(2) Notice of meeting shall be given to each shareholder of record, whether or not entitled to vote.
(3) The shareholders shall approve such sale, lease, exchange or other disposition and may fix, or may authorize the board to fix, any of the terms and conditions thereof and the consideration to be received by the corporation therefor, which may consist in whole or in part of cash or other property, real or personal, including shares, bonds or other securities of any other domestic or foreign corporation or corporations, by vote at a meeting of shareholders of (A) for corporations in existence on the effective date of this clause the certificate of incorporation of which expressly provides such or corporations incorporated after the effective date of this clause, a majority of the votes of all outstanding shares entitled to vote thereon or (B) for other corporations in existence on the effective date of this clause, two-thirds of the votes of all outstanding shares entitled to vote thereon.”
Plaintiff argues that Business Corporation Law § 909 does not apply to the Contract of Sale because it only applies to a sale of substantially all of the assets of a selling corporation and Make Realty owned three properties, and only the 1358 St. Johns Place property was actually being sold under the Contract of Sale. It contends that the right of first refusal given by Make Realty with respect to the Other Properties does not constitute a conveyance.
Plaintiff's argument is rejected. It is undisputed that part of the consideration given for the sale of the 1358 St. Johns Place property was the right of first refusal with respect to the Other Properties. Thus, since Right of First Refusal Agreement was inextricably intertwined with the Contract of Sale and part of the same transaction, the simultaneous entry into these two agreements must be deemed to effectively be a sale or other disposition of substantially all of the assets of Make Realty.
Plaintiff insists that no meeting or vote of the shareholders or written consent of all of the shareholders of Make Realty was required because Mable owns her original 50% of its outstanding shares, plus her inherited 25% of its outstanding shares, for a total of 75% of Make Realty's outstanding shares, and Irvine owns five percent of Make Realty's outstanding shares, resulting in them, together, owning 80% of Make Realty's outstanding shares, which is a majority of its shares. It contends that since the actual consent of the requisite number of shareholders was given, even though that consent was not given in writing or by a formal vote at a meeting, this is sufficient to satisfy Business Corporation Law § 909.
This contention is devoid of merit. The mere fact that Irvine and Mable consented to the sale of the 1358 St. Johns Place property to plaintiff is not tantamount to an approval by a vote of two-thirds of the shareholders at a meeting. It is undisputed that there was no formal vote at a meeting of shareholders in accordance with the requirements of Business Corporation Law § 909, and, thus, there was no compliance with the corporate formalities mandated by Business Corporation Law § 909(a).
Plaintiff further argues that Business Corporation Law § 909 applies only to a sale not made in the usual or regular course of business, and that, here, the sale of the 1358 St. Johns Place property to it was in the regular course of business. It bases this argument solely on the fact that Make Realty's certificate of incorporation stated that the business of the corporation was to buy and sell real estate. Irvine, however, attests that Make Realty had never before sold any real property, and, in any event, it cannot be disputed that Make Realty, as a dissolved corporation, was no longer carrying out this business at the time of its entry into the Contract of Sale, but, rather, it was seeking, by such contract, to dispose of its remaining assets.
The court, in determining whether a transaction is in the regular course of business, must look to the activities in which a corporation is actually engaged, rather than to the mere wording of its certificate of incorporation (see Vig v. Deka Realty Corp., 143 A.D.2d 185, 186 [2d Dept 1988], lv denied 73 N.Y.2d 708 [1989] ; Edbar Corp. v. Sementilli, 2 Misc.3d 1001 [A], 2004 N.Y. Slip Op 50068[U], *2–3 [Sup Ct, Bronx County 2004] ). Here, since Make Realty was not engaged in the business of selling its real property at the time of its entry into the Contract of Sale, this sale was not made in the regular course of the business that it actually conducted (see Theatre Dist. Realty Corp. v. Appleby, 117 AD3d 596, 596 [2d Dept 2014] ; Vig, 143 A.D.2d at 186 ; Matter of McKay v. Teleprompter Corp., 19 A.D.2d 815, 815 [1st Dept 1963], appeal dismissed 13 N.Y.2d 1058 [1963] ).
Plaintiff also contends that Business Corporation Law § 909 is inapplicable to the Contract of Sale because Make Realty was dissolved in 1994 by proclamation. It relies upon Business Corporation Law § 1005(A) in arguing that Business Corporation Law § 909 does not apply to a dissolved corporation, and, therefore, cannot apply to Make Realty. Business Corporation Law § 1005(3)(A), however, provides as follows:
“After paying or adequately providing for the payment of its liabilities:
(A) The corporation, if authorized at a meeting of shareholders by a majority of the votes of all outstanding shares entitled to vote thereon may sell its remaining assets, or any part thereof, for shares, bonds or other securities or partly for cash and partly for shares, bonds or other securities, and distribute the same among the shareholders according to their respective rights. In the case of a sale under this subparagraph where the consideration is in whole or in part other than cash, any shareholder, entitled to vote thereon, who does not vote for or consent in writing to such sale, shall, subject to and by complying with the provisions of section 623 (Procedure to enforce shareholder's right to receive payment for shares), have the right to receive payment for his shares. Section 909 (Sale, lease, exchange or other disposition of assets) is not applicable to a sale of assets under this paragraph ” (emphasis added).
Thus, the Contract of Sale is not a sale of assets under Business Corporation Law § 1005(3)(A) since the consideration for it was $700,000 and, as such, the consideration was not, in whole or in part, other than cash. Furthermore, the Contract of Sale was not authorized at a meeting of shareholders by a majority of the votes of all outstanding shares entitled to vote thereon as required under that section. Irvine's siblings, as shareholders of Make Realty, did not receive any notice of or attend any meeting or give their written consent in accordance with Make Realty's bylaws. Consequently, Business Corporation Law § 1005(3)(A) and its exception to the applicability of Business Corporation Law § 909 are wholly inapplicable to the Contract of Sale.
Plaintiff additionally argues that the Contract of Sale is binding upon Make Realty pursuant to the doctrine of apparent authority because it was signed by Irvine, as the secretary of Make Realty, pursuant to the Corporation Resolution signed by Mable, as the president of Make Realty. It cites to Odell v. 704 Broadway Condominium (284 A.D.2d 52, 57 [1st Dept 2001] ), which held that “a president of a corporation has apparent authority to act within the general scope of his [or her] office and such acts are binding on the corporation against one who does not know of any limitation or the president's true authority.”
Plaintiff's argument must be rejected. The secretary is not an officer with apparent authority to bind a corporation. While plaintiff argues that Mable, as the president of Make Realty, had apparent authority to bind Make Realty pursuant to the Corporate Resolution, it was not in possession of the Corporate Resolution, which was executed on October 8, 2013, at the time of the execution of the Contract of Sale on September 24, 2013.
Furthermore, plaintiff was aware that the owner of the 1358 St. Johns Place property was a corporation. Although Mable, as the president of Make Realty, may have implied authority to do necessary acts within the scope of her usual and ordinary duties, she does not possess such authority as to the extraordinary event of selling substantially all of Make Realty's assets by the Contract of Sale and the related Right of First Refusal Agreement. As previously discussed, Business Corporation Law § 909(a) explicitly states that such a sale must be authorized by the requisite vote of the shareholders and effectively precludes any implication of authority to bind Make Realty by any actions of Mable or Irvine without such authorization. Moreover, “Business Corporation Law § 909 precludes any claim of apparent authority since those who deal with corporations are bound by the statutory limitations on the authority of corporate officers' “ (Bouton v. Thomas Bros. Sales Corp., 179 A.D.2d 612, 613 [2d Dept 1988], quoting Vig, 143 A.D.2d at 187 ). Therefore, no triable issue of fact can be raised based on the apparent authority of Mable or Irvine to act on behalf of Make Realty and the contract of sale is legally void.
Thus, the court finds that plaintiff's motion for summary judgment in its favor as to its first cause of action for specific performance of the Contract of Sale, its fifth cause of action for a declaratory judgment as to its right of first refusal, and its sixth cause of action for specific performance of the Right of First Refusal Agreement must be denied (see CPLR 3212[b] ). Pursuant to CPLR 3212(b), however, “[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” Here, although Make Realty and Irvine have not cross-moved for summary judgment, they request summary judgment in their opposition papers. Since upon a search of the record, the court finds that Make Realty is entitled to judgment as a matter of law on plaintiff's first, fifth, and sixth causes of action, summary judgment dismissing these causes of action against it must be granted (see CPLR 3212 [b] ).
While, upon searching the record, the court generally may grant summary judgment to a non-moving party only with respect to the claims on which summary judgment was sought and not upon distinct and unrelated claims, the court may grant such summary judgment on other claims where the claims are related and involve the same questions of law raised and addressed in the motion before the court (see Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–430 [1996] ). As to plaintiff's second cause of action against Make Realty, although plaintiff has not moved for summary judgment with respect to this alternative claim, it merely seeks a different remedy, i.e., damages for breach of contract, as opposed to specific performance, and, since the court finds that Make Realty cannot be liable for the breach of the Contract of Sale since it was not signed by an authorized officer of Make Realty, nor was it approved by a vote of all shareholders at a duly-noticed meeting , and this cause of action is not a separate unrelated claim, but based upon the same question of law that is the subject of this summary judgment motion, Make Realty is entitled to summary judgment dismissing this claim (see CPLR 3212[b] ).
A more recent motion has been filed, returnable December 17, 2014, seeking a declaration that the Corporate Resolution dated October 6, 2013, is and void as Irvine J.P. Thomas admits having fraudulently signed his mother's name as President when his mother had been admitted to a nursing home suffering from dementia on August 13, 2013. Mr. Thomas states in his Affidavit in Support of the motion, that his attorney, Michael Apisiga, Esq., was referred to him by plaintiff and paid by plaintiff and he believes he was compromised in representing Make Realty. Mr. Thomas explains he “felt pressured and unduly influenced by plaintiff and Mr. Apisiga to sign my mother's name to the corporate resolution although I told them that she could not sign as she was in a nursing home suffering from dementia” (Affidavit in Support at paragraph 10).
As to plaintiff's third cause of action, which seeks the recovery of its down payment, Irvine, in his affidavit, asserts that his closing counsel, Mr. Apisiga, mailed the down payment check back to plaintiff's attorney, Mr. Nussbaum, and he has annexed a copy of this check dated October 27, 2013. He further states that Mr. Nussbaum mailed this check back to Mr. Apisiga. It, therefore, does not appear that there is any dispute that plaintiff is entitled to the return of its down payment. Plaintiff is therefore granted judgment on its third cause of action for the return of the $35,000 deposit held in escrow, together with any accrued interest if such sum was held in an interest-bearing escrow account.
CONCLUSION
Accordingly, plaintiff's motion for summary judgment in its favor is denied, except as to the third cause of action, upon which judgment is granted, and, upon a search of the record, summary judgment dismissing plaintiff's complaint with respect to its first, second, fifth, and sixth causes of action is granted. As to plaintiff's third cause of action, Make Realty and Irvine are directed to return plaintiff's down payment check to it within 10 days of service upon them of a copy of this decision and order with notice of entry thereon. Plaintiff's notice of pendency as to the 1358 St. Johns Place property and the Other Properties is vacated.
This constitutes the decision, order, and judgment of the court.