Opinion
Index No. 000000/2022
03-08-2023
P.W. Developers, LLC, Plaintiff, v. R.C., Defendant.
Erica R. Garcia of DL Partners represented Plaintiff. Joseph Stanely Hubicki, of Law offices of Joseph S. Hubicki represented Defendant.
Unpublished Opinion
Erica R. Garcia of DL Partners represented Plaintiff.
Joseph Stanely Hubicki, of Law offices of Joseph S. Hubicki represented Defendant.
Conrad D. Singer, J.
The following papers were read on this motion:
Notice of Motion for Summary Judgment and Supporting Papers [Seq. 001] X
Affirmation in Opposition to Motion and Supporting Papers [Seq. 001] X
Reply Affirmation [Seq. 001] X
Upon the foregoing e-filed papers, the motion filed by the plaintiff, P.W. Developers LLC ["plaintiff"], for an Order pursuant to CPLR § 3212 granting it summary judgment against the defendant, R.C. ["defendant"], on its first cause of action for a declaratory judgment and directing that the down payment of fifty four thousand, five hundred dollars [$54,500.00] be released to the plaintiff as liquidated damages; and on its second cause of action for legal fees and disbursements, is determined as hereinafter follows:
The plaintiff commenced this declaratory judgment action by filing a Summons and Complaint on May 18, 2022 (the "Complaint"). The defendant's Answer with Counterclaims ["Answer"] was served on August 19, 2022. The parties entered into a purchase agreement dated January 20, 2022, and a rider [the "Rider"] to agreement dated January 20, 2022 [collectively, the "Purchase Agreement"], pursuant to which the defendant agreed to purchase from the plaintiff the subject premises, i.e., residential unit 000 and garage unit 0 located at 88 C. Road, in G.N., New York [the "Subject Premises"] for a total purchase price of $545,000.00, with a down payment for the Subject Premises totaling $54,500.00 ["Down Payment"], to be deposited with the parties' escrow agent, leaving a balance of $490.500 due to be paid at the closing for the Subject Premises. The defendant deposited the Down Payment with the parties' escrow agent pursuant to the parties' contract.
The parties' Purchase Agreement provides, in pertinent part, that in the event of the purchaser's [defendant's] default under the Purchase Agreement for failing to close on the Subject Premises, the seller [plaintiff] shall "retain the Downpayment [ sic ] as liquidated damages [ ]." [Exhibit A to the plaintiff's motion]. Likewise, the Rider to the Purchase Agreement also provides, in pertinent part, that if the purchaser [defendant] defaults under the Purchase Agreement, the "Seller ["plaintiff"] shall retain the Downpayment [ sic ] as liquidated damages".
The Rider to the Purchase Agreement further provides, in pertinent part, that the purchaser [defendant], having inspected the Unit and the Building, is thoroughly acquainted with their condition, and "agrees to purchase the Unit 'AS IS, WHERE IS' and in its present condition, subject to reasonable use, wear, tear, and natural deterioration between now and Closing.". (Exhibit A to plaintiff's motion).
The Rider to the Purchase Agreement also provides, in pertinent part, that the parties "acknowledge and agree that this is an all cash transaction and is not subject to or contingent upon Purchaser [defendant] obtaining financing or a mortgage in connection with the purchase." While the Rider to the Purchase Agreement gives the defendant the option to seek financing in connection with the purchase of the Unit, the Rider specifically states that, "provided however, that Purchaser's [defendant's] obligation to close on the purchase shall in no way be contingent upon Purchaser's [defendant's] ability to obtain such financing." The Rider further provides that the "Seller [plaintiff] shall, at no cost to Seller [plaintiff], reasonably cooperate with Purchaser [defendant], in good faith in the event Purchaser [defendant] seeks to obtain a mortgage." (Exhibit A to plaintiff's motion).
The parties' Purchase Agreement provided for an initial "on or about February 15, 2022, at 10:00 AM" closing date. On March 4, 2022, the plaintiff sent the defendant's counsel a first "time of the essence" closing notice ["1st TOE Closing Notice"], stating that the plaintiff was ready, willing, and able to close on the sale of the Subject Premises on Friday, March 18, 2022, time being of the essence. (Exhibit B to plaintiff's motion). The 1st TOE Closing Notice provided that if the defendant failed to close on or before March 18, 2022, then the defendant would be considered in default under the Contract. On March 11, 2022, the defendant's counsel sent a letter rejecting the plaintiff's 1st TOE Closing Notice. (Exhibit C to the plaintiff's motion).
On March 30, 2022, the plaintiff sent the defendant's counsel a second time of the essence closing notice ("2nd TOE Closing Notice"), stating that the plaintiff was ready, willing, and able to close on the sale of the Subject Premises on Thursday April 14, 2022, time being of the essence. (Exhibit D to plaintiff's motion). The 2nd TOE Closing Notice provided that if the defendant failed to close on or before April 14, 2022, then the defendant would be considered in default under the Contract. On March 31, 2022, the defendant's counsel sent a letter rejecting the plaintiff's 2nd TOE Closing Notice. (Exhibit E to the plaintiff's motion).
The plaintiff contends that it should be granted summary judgment on its first cause of action for a declaratory judgment declaring that the parties' Purchase Agreement is now terminated and directing that the parties' Escrow Agent release the defendant buyer's down payment to the plaintiff as liquidated damages due to the defendant defaulting under the terms of the Purchase Agreement by failing to close on the Subject Premises on March 18, 2022, and on April 14, 2022.
It is well established that the proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. (See, Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]; see also, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]; see also, Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of its position. (Zuckerman, 49 N.Y.2d at 562).
In this case, the plaintiff established its prima facie entitlement to summary judgment by submitting the terms of the parties' real estate sale contract and evidence unequivocally demonstrating that the plaintiff defaulted thereunder in failing to close on March 18, 2022, and on April 14, 2022. (Verolla v Beechwood Carmen Bldg. Corp., 43 A.D.3d 913, 914 [2d Dept 2007]). As the defendant advised by letter prior to the "time of the essence" closing dates set forth in the 1st TOE Notice and 2nd TOE Notice that she would not be appearing at the closings, she breached the contract and forfeited her down payment, without the necessity of a tender on the part of the seller. (Xelo v Hamilton, 198 A.D.3d 710, 712-13 [2d Dept 2021] [citations omitted]).
The Court finds that the conclusory and unsubstantiated contentions raised in the defendant's motion opposition papers as to whether the plaintiff "reasonably cooperated" with the defendant's efforts to obtain a mortgage are insufficient to raise a triable issue of fact in opposition to the plaintiff's motion. The parties' agreement specifically provided that the transaction was to be a cash transaction, that the defendant was purchasing the subject property "AS IS", and that the defendant's obligation to close on the purchase was "in no way" contingent on her ability to obtain financing. As the defendant failed to raise a triable issue of fact in opposition to the plaintiff's prima facie showing, the plaintiff shall be awarded summary judgment on its first cause of action for declaratory judgment as against the defendant.
The plaintiff's second cause of action against the defendant seeks repayment by the defendant of the plaintiff's reasonable attorneys' fees incurred in successfully litigating this matter. The Court finds that the plaintiff is entitled to "reasonable attorney's fees" to be paid by the defendant under the terms of the Rider to the parties' Agreement, which provides as follows:
"Seller and Purchaser agree that, in the event of any litigation arising between the parties in connection with this Contract, the losing party shall be responsible for payment of the reasonable attorneys' fees of the successful party (at trial and appellate levels)". (Exhibit A to the plaintiff's motion).
As the plaintiff has successfully obtained summary judgment against the defendant, the Court finds that it is entitled to reasonable attorneys' fees, to be determined at an attorney inquest hearing that will be conducted by the Court at a future date as set forth below.
Accordingly, it is hereby, ORDERED, that the plaintiff's motion for an Order pursuant to CPLR § 3212 granting it summary judgment on its first cause of action against the defendant, R.C. for a declaratory judgment declaring that the parties' Purchase Agreement is now terminated and directing the parties' Escrow Agent, R.A. of New York, LLC, to release to the plaintiff the defendant's down payment in the amount of $54,500.00 plus any and all interest accrued thereon as liquidated damages, is GRANTED, in its entirety; and it is further, ORDERED, that the plaintiff is directed to serve upon R.A. of New York, LLC a copy of this Decision and Order together with Notice of its Entry and to e-file with the Court an affidavit of such service no later than three days after service; and it is further, ORDERED, that R.A. of New York, LLC, is hereby directed to release to the plaintiff, P.W. Developers, LLC the down payment on the parties' agreement that is presently being held in escrow, in the amount of $54,500.00, plus any and all interest accrued thereon; and that such funds are to be released to the plaintiff forthwith; and it is further, ORDERED, that the portion of the plaintiff's motion which seeks an Order pursuant to CPLR § 3212 granting it summary judgment on its second cause of action for reasonable attorneys' fees incurred in this litigation is GRANTED; and it is further, ORDERED, that the plaintiff is directed to file and serve a Note of Issue, together with a Copy of this Decision and Order, on all parties and shall serve copies of same, together with receipt of payment, upon the Clerk of this Court on or before May 31, 2023; and it is further, ORDERED, that the failure to file a Note of Issue or to appear as directed may be deemed an abandonment of the rights giving rise to the Inquest hearing; and it is further, ORDERED, that the plaintiff shall file proof of service of the Note of Issue and Decision and Order on or before May 31, 2023; and it is further, ORDERED, that an Inquest on damages shall take place In-Person on June 13, 2023, at 9:30 AM, to the extent that the Note of Issue has been filed and served as directed above; and it is further, ORDERED, that all other requests for relief not specifically addressed herein are deemed denied.
This constitutes the decision and Order of this Court.