Opinion
Index No. 154033/2020 MOTION SEQ. No. 001
03-24-2023
JONATHAN A. ROSSMAN, Plaintiff, v. DORIS SCHWANZ and PEGGY O'DEA, as Administratrixes of the Estate of Walter Sommer, Defendants.
Unpublished Opinion
MOTION DATE 03/24/2023
PRESENT: HON. DEBRA A. JAMES Justice
DECISION + ORDER ON MOTION
Debra A. James Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,27,28,29,30,31,32,33,34,35,36,37,38,39,40,41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56, 57, 58 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER .
Upon the foregoing documents, it is
ORDERED that the cross-motion of defendants, pursuant to CPLR 3212, for an award of summary judgment entitling them to retain the plaintiff's $109,000 down payment, as liquidated damages, is denied; and it is further
ORDERED that the motion of plaintiff, pursuant to CPLR 3212, for summary judgment, for an order directing the release by the Escrowee of the down payment in the amount of $109,000 to plaintiff, and to dismiss the counterclaims interposed against plaintiff, is granted; and it is further
ORDERED that the counterclaims against plaintiff are dismissed; and it is further
ORDERED that the contract deposit in the amount of $109,000 in the IOLA account of Koutsoudakis &lakovou Law Group, LLC, as designated Escrowee, shall be transferred to plaintiff, within twenty (20) days of service of a copy of this order with notice of entry; and it is further
ORDERED that the plaintiff shall be awarded costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk shall enter judgment accordingly.
DECISION
Defendants have failed to demonstrate that plaintiff clearly and unequivocally repudiated the cooperative apartment contract of sale. Notwithstanding plaintiff's "closing apologies for the withdrawal of my purchase order" stated in the final paragraph of his electronic message dated March 20, 2020 (NYSCEF Document Number 3), the first paragraph of such message, which states that "It is with great sadness that I write to you to request to withdraw the offer to purchase" (underlining added), is neither a clear nor an unequivocal expression of plaintiff's intent not to follow through with the purchase and/or closing. See Peierls, Buhler & Co, Inc v Newburger, 202 AD 471 (1st Dept 1922) .
Moreover, the e-mail exchanges of March 25, 2020 between the broker for the plaintiff and the managing agent of the cooperative board, on which the broker for the defendant sellers was copied (NYSCEF Document Number 12), demonstrate a bona fide retraction of any repudiation by plaintiff, by way of plaintiff's intent to continue to perform his obligations under the terms of the contract of sale, specifically his continuation of his application for board approval of the purchase. See Contract ¶¶ 6.2.1 and 6.2.3 (NYSCEF Document Number 8). In such message from his broker, plaintiff did not withdraw such application, but merely rejected the board's request to amend the contract terms to increase the amount of the contract deposit. Likewise, by electronic message dated April 16, 2020 (NYSCEF Document Number 16), plaintiff retracted any purported repudiation, expressing his intention to follow through with the purchase, when he rejected the board's request, made that same day, to amend the contract to require that he place one year's worth of maintenance payments in escrow. Nor have defendants demonstrated any material change in their position before the April 16, 2020 exchange of e-mails. See Bernstein v Navani, 131 A.D.3d 401 (1st Dept 2015) .
Finally, defendants can offer no evidence demonstrating that they were "ready, willing, and able to perform" at the time of plaintiff's alleged repudiation, given the contractual condition precedent that required board approval of the sale, which condition had not yet been met. See Pesa v Yoma Development Group, Inc., 18 N.Y.3d 527, 532-533 (2012).