Opinion
501428/2013
04-02-2015
Shlomo Karpen, Plaintiff, v. Golden Jubilee Realty, LLC, Defendant.
Upon the foregoing papers, in this action by plaintiff Shlomo Karpen (Karpen) against defendant Golden Jubilee Realty, LLC (Golden Jubilee) for specific performance of a contract for the sale of real property, Golden Jubilee moves, under motion sequence number one, for summary judgment dismissing Karpen's complaint as against it. Karpen cross-moves, under motion sequence number two, for summary judgment in his favor as against Golden Jubilee. Tomer Swisa (Swisa), a non-party, moves, by order to show cause, under motion sequence number four, for an order, pursuant to CPLR 1012 and 1013, permitting him to intervene in this action.
BACKGROUND
By a contract of sale dated April 25, 2012 (the contract), Golden Jubilee, as the seller, agreed to sell Karpen, as the purchaser, real property located at 967 Atlantic Avenue in Brooklyn, New York (the property). The contract was executed by Karpen, and on behalf of Golden Jubilee, by its member, Nasru Ali (Ali). The contract provided for a purchase price of $490,000 in cash, plus the assumption of two existing mortgages in the amount of more than $2 million, which had been given by Indus American Bank, as mortgagee, to Golden Jubilee, as mortgagor, and which were guaranteed by certain principals of Golden Jubilee, and secured by the property. A down payment of $37,500 was paid by Karpen at the time that the contract was signed, and the remaining balance of $452,500 was due at the closing. The contract did not contain a time is of the essence clause with respect to a closing date. It provided that the closing was scheduled to take place on or about August 24, 2012, which was 120 days from the date of the execution of the contract on April 25, 2012.
Paragraph R-5 of the rider to the contract provided for several conditions precedent to closing. Subparagraph C of paragraph R-5 provided that each of these conditions were required to be fulfilled within 120 days of signing, i.e., by August 24, 2012, which, as noted above, was the same date scheduled for the closing. This paragraph of the rider to the contract further provided that in the event that any of the stated conditions precedent were not satisfied by August 24, 2012, "the party benefitting from such condition may elect to either (i) waive such condition and proceed to Closing with no abatement or increase to the Purchase Price, or (ii) notify the other party of its election to terminate this Contract." In the event of an election to terminate the contract, the contract was to be "deemed null and void" with neither party having any further recourse against the other once the down payment deposit was refunded.
One of these conditions related to the mortgage loans encumbering the property, which had been given by Indus American Bank to Golden Jubilee and had been guaranteed by its principals. These mortgage loans were the subject of a foreclosure proceeding that had been commenced on February 14, 2012 by Indus American Bank against Golden Jubilee in the Supreme Court, Kings County (Indus American Bank v Golden Jubilee Realty, LLC, Sup Ct, Kings County, index No. 3686/2012) (the foreclosure action). This condition required Karpen to obtain: "[t]he discharge and release of all of the existing individual and entity guarantors of the Mortgage Loans by the Existing Lender or by the successor and/or assigns of such Existing Lender, from any and all obligations due under such Mortgage Loans. In furtherance thereof, [Karpen] shall cause any action against the individual or entity guarantors in connection with the Mortgage Loans to be dismissed with prejudice and a modification of the [foreclosure] proceedings to remove any exposure for a deficiency judgment to be obtained against [Golden Jubilee]."
The closing of the sale of the property did not take place within 120 days nor were the conditions to closing set forth in paragraph R-5 of the rider to the contract fulfilled during that time period. Instead, the parties mutually agreed to adjourn the closing many times over the course of several months despite the passage of well over 120 days from the April 24, 2012 date of the contract. Written communications exchanged from January through March 2013 reflect that although the August 24, 2012 date listed in the contract for the performance of the above stated conditions had already passed several months earlier, Golden Jubilee and its transaction counsel nevertheless repeatedly sought to set a closing date and arrange for the fulfillment of these conditions. Specifically, in an e-mail dated January 3, 2013, Golden Jubilee's transaction counsel stated that Golden Jubilee had informed him that the parties were "seeking to close this matter in the near future," and, in an e-mail dated January 8, 2013, he sought to discuss scheduling a closing for the conveyance of the property. In reliance upon Golden Jubilee's expressed intention that it would imminently close the sale transaction, Karpen, on January 28, 2013, obtained a mortgage financing commitment and paid a $20,000 deposit to secure such commitment, and, in March and April 2013, Karpen extended the term of that commitment by prepaying interest and fees in the amount of $11,700 ($5,700 for each of these months). On February 25, 2013, Karpen sent an engineer to inspect the property.
On March 4, 2013, defendant's transaction counsel e-mailed Karpen's transaction counsel, informing her that he had advised his Golden Jubilee of a March 11, 2013 closing date proposed by Karpen, and asking her to arrange for Karpen to obtain the discharge/release instrument referred to in paragraph R-5 of the rider to the contract. Karpen's transaction counsel responded to that e-mail by asking for the names of the members of Golden Jubilee, who were the individual guarantors, so that she could prepare a release. Later that day, in an e-mail, Golden Jubilee's transaction counsel provided the names of the individual guarantors to be released, and, the next morning, one of Golden Jubilee's principals corrected a mistake in that e-mail regarding the name of one of the principals.
On March 8, 2013, Karpen's transaction counsel notified Golden Jubilee's transaction counsel that since she had not heard from him regarding the closing, Karpen was "forced to adjourn the closing." On March 15, 2013, Golden Jubilee's principal informed Karpen that he would be unavailable to close for 10 to 12 days "because of travels to the west coast." After several days with no response from Golden Jubilee or its transaction counsel regarding a new closing date, Karpen's transaction counsel, by a letter dated March 18, 2013, informed Golden Jubilee's transaction counsel that Karpen was ready, willing, and able to close, and that such letter constituted notice that the closing was thereby scheduled for April 19, 2013 with time being of the essence, and that if Golden Jubilee failed to appear at the closing, it would be in default of the contract. By a letter dated March 19, 2013, Golden Jubilee's transaction counsel responded that he was in receipt of the March 18, 2013 letter purporting to establish a time of the essence closing date, and that Golden Jubilee viewed this action as "without legal merit" and its position was that this letter failed to provide a legal basis for the actions sought.
Consequently, on March 21, 2013, Karpen filed this action against Golden Jubilee, seeking specific performance of the contract, and he also filed a notice of pendency on the same date. Subsequently, by a purported "Notice Terminating Contract," dated April 2, 2013, 12 days after Karpen commenced this action, Golden Jubilee, by its managing member, Ali, purported to provide Karpen, for the first time, with notice that it was electing to terminate the contract, effective upon receipt of such notice, based upon Karpen's failure to comply, within 120 days of the date of the contract, with his obligations pursuant to paragraph R-5 of the rider to the contract, which required him to cause any action against the individual or entity guarantors in connection with the mortgage loans to be dismissed with prejudice and to modify the proceedings to remove any exposure for a deficiency judgment against Golden Jubilee. Golden Jubilee enclosed a check refunding Karpen's down payment.
On April 12, 2013, Golden Jubilee interposed an answer to the complaint. In its answer, Golden Jubilee alleged, in its first counterclaim, that it had entered into the contract with Karpen on April 25, 2012, and it sought a declaration that the contract was terminated due to Karpen's failure to comply with paragraph R-5 of the rider to the contract. Golden Jubilee's second counterclaim seeks a declaration that Karpen is in default of its obligations under the contract based on such lack of compliance, its third counterclaim seeks damages based upon Karpen's filing of the notice of pendency, and its fourth counterclaim seeks the recovery of its legal fees incurred in the defense of this action.
On August 20, 2013, Golden Jubilee filed its instant motion for summary judgment, which is supported by affidavit of Ali (who, as previously noted, is its managing member), contending that the contract was terminated by the Notice Terminating Contract pursuant to paragraph R-5 of the rider to the contract. On October 23, 2013, Karpen filed his cross motion for summary judgment, contending that Golden Jubilee had waived this condition precedent, that he was ready, willing, and able to satisfy this condition precedent, and that the time for performance of this condition precedent had been adjourned to the time of closing.
By a Consent to Substitution of Attorneys dated January 30, 2014, Karpen changed his counsel in this action. Following Karpen's retention of new counsel, Karpen, on March 18, 2014, moved, under motion sequence number three, to amend his complaint, in order to include facts supporting his claims, including facts concerning the written communications between the parties following August 24, 2012, which demonstrate that the parties continued to attempt to set a closing date despite the fact that the 120-day period set forth in paragraph R-5 of the rider to the contract had already passed, and which evidence that the parties had contemplated that the conditions set forth in that paragraph would be satisfied at the time of closing.
On July 15, 2014, following the commencement of this action and the filing of Karpen's notice of pendency and while the instant summary judgment motion and cross motion were pending, Golden Jubilee entered into a contract for the sale of the property to Swisa for the purchase price of $5,000,000 with a down payment of only $10,000. Swisa, at the time of his entry into his contract with Golden Jubilee, was well aware of its prior contract with Karpen for the sale of the property. Indeed, Golden Jubilee's contract with Swisa provides that the closing of the sale of the property to Swisa is to be held 240 days from the date of the contract and so long as any and all litigation in connection to the property has been concluded, and it specifically names this action brought by Karpen.
On July 28, 2014, Swisa filed its instant motion to intervene in this action. Although Golden Jubilee had admitted in its answer and affidavits in support of its summary judgment motion that it had entered into the contract with Karpen, Swisa, in his motion, now contends that Golden Jubilee's contract with Karpen was null and void because it was executed without the knowledge of two out of four members of Golden Jubilee and absent the approval of a majority of Golden Jubilee's members in contravention of Limited Liability Company Law § 407. Swisa asserts that his contract with Golden Jubilee, on the other hand, was validly executed with the written consent of three out of four members of Golden Jubilee as is required by the Limited Liability Company Law and the operating agreement of Golden Jubilee. Swisa argues that he, therefore, has a legal interest in the property which is superior to Karpen's right to it, and that he should be permitted to intervene to protect his interest in the property, as a contract vendee.
By an order dated August 11, 2014, the court granted Karpen's motion to amend his complaint, and directed Karpen to serve and file its verified amended complaint on or before August 18, 2014. Karpen's amended complaint, in his first cause of action, seeks specific performance of the contract, and, in his second cause of action, seeks the alternative relief of damages in the event that he cannot be awarded specific performance. On August 14, 2014, Karpen filed his verified amended complaint, and, on September 3, 2014, Golden Jubilee filed its verified answer to Karpen's amended complaint. Karpen filed his verified reply to Golden Jubilee's counterclaims on September 23, 2014. Since Karpen's complaint was amended during the pendency of the Golden Jubilee's motion and Karpen's cross motion for summary judgment, this motion and cross motion shall be addressed with respect to the allegations set forth in Karpen's amended complaint.
DISCUSSION
Swisa's Motion
The court initially addresses Swisa's motion to intervene. Upon a timely motion, CPLR 1012 (a) (2) permits intervention as of right "when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment." CPLR 1012 (a) (3) permits such intervention as of right "when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment."
Alternatively, CPLR 1013 provides for permissive intervention when the proposed intervenor's claim and the main action "have a common question of law or fact." "In exercising its discretion, the court [is required to] consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party" (CPLR 1013). One of the most important considerations in determining whether to grant intervention is whether the proposed intervenor has a "real and substantial interest in the outcome of the proceedings" (Berkoski v Board of Trustees of Inc. Vil. of Southampton, 67 AD3d 840, 843 [2d Dept 2009]; see also American Home Mtge. Servicing, Inc. v Sharrocks, 92 AD3d 620, 621 [2d Dept 2012]).
Swisa argues that he should be entitled to intervene in this action because the relief sought by Karpen is for specific performance of the contract to purchase the property and, therefore, involves the disposition of the property, and that his property rights may be affected adversely by the judgment if Karpen prevails in this action. However, contrary to this argument, Swisa, who had prior notice of Karpen's interest in the property at the time that he entered into the contract with Golden Jubilee, has no valid legal basis upon which he can base his claim to the property, and, thus, he lacks any real and substantial interest in the outcome of this action.
Swisa, in support of his motion to intervene, has submitted a proposed complaint, in which he alleges that Shiraz Habib Sutar (Sutar), Anjli Kakwani (Kakwani), Rachna Shahdadpuri (Shahdadpuri), and Ali are members of Golden Jubilee, with each of them holding a 25% interest in it. He relies upon Limited Liability Company Law § 402 (d) (2), which provides that "[e]xcept as provided in the operating agreement, whether or not a limited liability company is managed by the members or by one or more managers, the vote of at least a majority in interest of the members entitled to vote thereon shall be required to . . . approve the sale . . . of all or substantially all of the assets of the limited liability company." Although Swisa is not a member of Golden Jubilee, he has produced a copy of Golden Jubilee's operating agreement dated November 13, 2007. He notes that Golden Jubilee's operating agreement contains no terms regarding the sale of its sole asset, but states that "[t]he business and affairs of [Golden Jubilee] shall be managed by the Members by the affirmative vote of a majority in interest of the Members." He contends that although the contract between Karpen and Golden Jubilee was executed by Ali, as its managing member, the contract is null and void because it constitutes a sale of substantially all of Golden Jubilee's assets without the approval of two of Golden Jubilee's four members, namely, Kakwani and Shadadpuri.
Swisa annexes Kakwani and Shahdadpuri's affidavits, in which they both claim that they never authorized or approved of the contract, and that they first became aware of the contract on June 30, 2014, when they met with the other members of Golden Jubilee to discuss the terms of sale with Swisa. Swisa asserts that in contrast to Golden Jubilee's contract with Karpen, three of the four members of Golden Jubilee, namely, Kakwani, Shahdadpuri, and Sutar, signed the contract that he has with Golden Jubilee and executed written consents, pursuant to Limited Liability Company Law § 407, approving this contract.
In addressing this argument by Swisa, the court notes the fact that Kakwani and Shahdadpuri were named in the foreclosure action individually and were represented by the same counsel who represents Golden Jubilee in the present action. Moreover, Karpen's primary contact at Golden Jubilee in connection with the contract was Jack Kakwani (the husband of Kakwani), who, for years, held himself out as Golden Jubilee's owner and agent with the consent of the other members of Golden Jubilee, and swore in the foreclosure action that he is a "member" of Golden Jubilee. In addition, the husband of Shahdadpuri, Harish Shadadpuri, has made representations in connection with Golden Jubilee's contract with Karpen. Karpen contends, based upon the above, that the assertions of Kakwani and Shahdadpuri are incredible, and that they long ago acquiesced in and ratified Golden Jubilee's entry into the contract. Furthermore, there is no showing that the operating agreement submitted by Swisa was not subsequently amended to admit additional members, or to provide that Ali, as the managing member, was authorized to enter into the contract (see generally Ahmed v Fulton St. Bros. Realty, LLC, 107 AD3d 832, 833 [2d Dept 2013]).
However, regardless of the issue of the patent lack of credibility of Swisa's assertions and Kakwani and Shahdadpuri's assertions, Swisa lacks standing to raise the issue of the authority of Golden Jubilee to enter into the contract. Swisa's claim that Ali's act in entering into the contract with Karpen was unauthorized under the Limited Liability Company Law is derivative in nature, and could only have been asserted in a derivative action by members of Golden Jubilee (see Tzolis v Wolff, 39 AD3d 138, 141 [1st Dept 2007], affd 10 NY3d 100 [2008]). Indeed, even members of a limited liability company are prohibited by Limited Liability Company Law § 610 from individually intervening in an action brought against the limited liability company except where the object is to enforce the member's right against the limited liability company (see Baron v Rocketboom, LLC, 57 AD3d 269, 270 [1st Dept 2008]). Kakwani and Shahdadpuri have not brought a derivative action against Golden Jubilee, but, rather, have for well over two years since the execution of the contract, sought the benefits of it, through their counsel, by seeking to be released as guarantors of the mortgages. As noted above, Swisa is not a member of Golden Jubilee, and cannot assert this defense on its behalf.
Golden Jubilee, in its original answer, and in sworn affidavits submitted to the court, has expressly admitted that it entered into the contract. "Facts admitted in a party's pleadings constitute formal judicial admissions, and are conclusive of the facts admitted in the action in which they are made" (GMS Batching, Inc. v TADCO Constr. Corp., 120 AD3d 549, 551 [2d Dept 2014]; see also Performance Comercial Importadora E Exportadora Ltda v Sewa Intl. Fashions Pvt. Ltd., 79 AD3d 673, 674 [1st Dept 2010]; Zegarowicz v Ripatti, 77 AD3d 650, 653 [2d Dept 2010]; Figueiredo v New Palace Painters Supply Co. Inc., 39 AD3d 363, 364 [1st Dept 2007]; Falkowski v 81 & 3 of Watertown, 288 AD2d 890, 891 [4th Dept 2001]). Thus, such formal judicial admission is binding upon Golden Jubilee.
While Golden Jubilee, in its amended answer, now alleges, in its ninth affirmative defense, "upon information and belief," that the contract is null and void because it was not duly authorized pursuant to its organization documents, its previous admission by it in its original answer "does not lose its effect as an admission of fact because the pleading has been superceded as such by an amended pleading" (Kwiecinski v Chung Hwang, 65 AD3d 1443, 1443 [3d Dept 2009] [internal quotation marks omitted]; see also Bogoni v Friedlander, 197 AD2d 281, 292 [1st Dept 1994], lv denied 84 NY2d 803 [1994]). Moreover, Golden Jubilee, in support of its motion for summary judgment and in opposition to Karpen's motion for summary judgment, does not itself raise the argument that the contract was not validly authorized, but, instead, relies upon the argument that Karpen did not comply with a condition precedent contained within the contract. Therefore, no bona fide triable issue of fact is raised as to the issue of Golden Jubilee's authority to enter into the contract (see generally Pasquarella v 1525 William St., LLC, 120 AD3d 982, 984-985 [4th Dept 2014]).
Thus, inasmuch as Swisa has no real stake in the outcome of this action since he had notice of Karpen's prior interest in the property and since he lacks standing to raise a defense based upon the authorization of the members of Golden Jubilee and also cannot raise a defense which Golden Jubilee does not possess due to its judicial admission of its entry into the contract, his motion for intervention must be denied.
Golden Jubilee's Motion and Karpen's Cross Motion
In support of its motion, Golden Jubilee argues that Karpen did not comply with the condition set forth in paragraph R-5 of the rider to the contract since it did not provide it with the discharge and release of all of the existing guarantors by the lender from the obligations due under the mortgage loans and did not cause the foreclosure action to be dismissed with prejudice or remove Golden Jubilee's exposure for a deficiency judgment. It contends that based upon this lack of compliance, it elected to terminate the contract and refund Karpen's down payment. It maintains that the contract is, therefore, null and void, and it is entitled to summary judgment dismissing Karpen's action.
In opposition to Golden Jubilee's motion and in support of his cross motion for summary judgment, Karpen argues that Golden Jubilee waived this condition by continuing to engage in negotiations to set a closing date after the 120-day period set forth in paragraph R-5 of the rider to the contract had passed, and that it was contemplated by the parties that this condition would be satisfied on the same date as the closing. In addition, Karpen points out that on May 1, 2012, Indus American Bank assigned the mortgages on the property to 967 Atlantic Holdings LLC (Atlantic Holdings), an entity with which he is affiliated, and Atlantic Holdings took over the existing foreclosure action on the mortgage loans on the property and took no steps to advance that action. Karpen maintains that he, at all times, was ready, willing, and able to discharge and release all of the guarantors of the mortgage loans, cause the foreclosure action to be dismissed, and remove Golden Jubilee from any exposure to a deficiency judgment.
In addressing these arguments, the court notes that "[c]ontractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned" (Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P, 7 NY3d 96, 104 [2006]). "Such abandonment may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage'" (id., quoting General Motors Acceptance Corp. v Clifton-Fine Cent. School Dist., 85 NY2d 232, 236 [1995]; see also Baker v Norman, 226 AD2d 301, 303 [1st Dept 1996], lv dismissed 88 NY2d 1040 [1996]). Indeed, "a waiver may be established as a matter of law by the party's undisputed acts or language so inconsistent with a purpose to stand on the contract provisions as to leave no opportunity for a reasonable inference to the contrary" (Private One of NY, LLC v JMRL Sales & Serv., Inc., 21 Misc 3d 1106[A], 2008 NY Slip Op 51989[U], *7 [Sup Ct, Kings County 2008] [internal quotation marks and citation omitted]).
Here, as discussed above, Karpen has submitted evidence of e-mail communications on the part of Golden Jubilee following August 24, 2012, the stated date for performance of the condition precedent, which unequivocally evinced Golden Jubilee's intent to waive its right to cancel the contract for failure to satisfy this condition by that date (see Coizza v 164-50 Crossbay Realty Corp., 73 AD3d 678, 682 [2d Dept 2010]; J & R Landscaping v Damianos, 1 AD3d 563, 564-565 [2d Dept 2003]; Moray v DBAG, Inc., 305 AD2d 472, 472 [2d Dept 2003]; Kaufman v Haverstraw Rd. Lands, 158 AD2d 675, 675-676 [1990], appeal dismissed in part, denied in part 76 NY2d 933 [1990]; Gresser v Princi, 128 AD2d 752, 752-753 [2d Dept 1987], appeal dismissed 70 NY2d 693 [1987]). These e-mails demonstrate that Golden Jubilee was electing to proceed to closing despite the fact that the condition precedent was not performed within the 120-day time period. Moreover, the finding of such a waiver is consistent with the express provision in paragraph R-5 of the rider to the contract that in the event that a condition precedent were not fulfilled, a party had the right to "waive such condition and proceed to closing." Thus, as a matter of law, Golden Jubilee waived the 120-day time period for performance of the condition precedent provided in paragraph R-5 of the rider to the contract.
While Golden Jubilee now claims that it terminated the contract pursuant to paragraph R-5 of the rider to the contract, the contract expressly provided that the satisfaction of the condition by the date stated would be waived unless Golden Jubilee "notif[ied] [Karpen] of its election to terminate this Contract." Here, Golden Jubilee first purported to notify Karpen of its election to terminate the contract under paragraph R-5 of the rider to the contract on April 2, 2013, seven months after the August 24, 2012 date set forth in the contract, and only after Karpen's March 18, 2013 letter establishing a time is of the essence closing date and after Karpen had already commenced this action on March 21, 2013. At that point, Golden Jubilee had already waived enforcement of the 120-day time period.
Moreover, having waived this provision, Golden Jubilee could not hold Karpen to its terms without adequate notice that strict compliance would be required (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982], rearg denied 57 NY2d 674 [1982]; Moray, 305 AD2d at 472; Tucek v Hoffman, 161 AD2d 588, 590 [2d Dept 1990]). Golden Jubilee failed, at any time prior to serving its April 2, 2013 purported Notice Terminating Contract, to set a new date for performance of this condition or make time of the essence by giving "clear, distinct, and unequivocal notice to that effect," and giving Karpen a reasonable time in which to act (Savitsky v Sukenik, 240 AD2d 557, 558 [2d Dept 1997] [internal quotation marks omitted]), and by informing Karpen that if he did not perform by that date, he would be considered in default (see Cave v Kollar, 296 AD2d 370, 371-372 [2d Dept 2002]). Thus, under these circumstances, it was improper for Golden Jubilee to suddenly attempt to terminate the contract on this basis without first notifying Karpen that time was of the essence with respect to the performance of this condition (see Tucek, 161 AD2d at 590). Consequently, Golden Jubilee's motion for summary judgment must be denied, and Karpen is entitled to summary judgment in his favor on his first cause of action for specific performance, requiring Golden Jubilee to convey the property to him in accordance with the terms of the contract (see CPLR 3212 [b]).
CONCLUSION
Accordingly, Golden Jubilee's motion for summary judgment is denied, Karpen's cross motion for summary judgment in his favor on his claim for specific performance is granted, and Swisa's motion for intervention is denied.
This constitutes the decision, order, and judgment of the court.
E N T E R,
J. S. C.