Opinion
No. 505193/2015.
12-03-2015
Abraham WEINSTOCK a/k/a Israel Weinstock and 1052 Greene Ave Holdings LLC, Plaintiffs, v. Linda HUNT, Bayview Loan Servicing, Defendants.
Solomon E. Antar, Esq. Brooklyn, Attorney for Plaintiffs. Isa Abdur–Rahman, Esq. Jamaica, Attorney for Defendants.
Solomon E. Antar, Esq. Brooklyn, Attorney for Plaintiffs.
Isa Abdur–Rahman, Esq. Jamaica, Attorney for Defendants.
CAROLYN E. DEMAREST, J.
The following e-filed papers read herein:
| Papers Numbered | |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 5–1822 | 34 |
| Opposing Affidavits (Affirmations) | 36 |
| Reply Affidavits (Affirmations) | 40–42 |
| Affidavit (Affirmation) | |
| Memorandum of Law | 35 |
In this action by plaintiffs Abraham Weinstock a/k/a Israel (Weinstock) and 1052 Greene Avenue Holdings LLC (Greene Holdings) against defendants Linda Hunt (Hunt) and Bayview Loan Servicing (Bayview) alleging a breach of a contract for the sale of real property, Hunt moves, under motion sequence number one, for an order, pursuant to CPLR 3211(a)(1), (3), (7), and (10), dismissing Weinstock and Greene Holdings' complaint in its entirety with prejudice and cancelling the notice of pendency filed herein. Weinstock cross-moves, under motion sequence number two, for summary judgment in his favor pursuant to CPLR 3212.
BACKGROUND
By a deed dated March 9, 2000 and recorded on June 5, 2000, Hunt purchased real property located at 1052 Greene Avenue in Brooklyn, New York (the property). According to the New York City Department of Buildings' records, the property is not classified as residential, but, rather, has a Department of Finance Building Classification of “M9–Church, Synagogue.” Hunt, a minister, has, however, lived on the third floor unit of the property, as her primary residence, since the time of its purchase. She is the executive director of Charles H. Churn Jr. Christian Center Inc. (the Churn school), which is a faith-based primary and secondary school that she has operated on the ground floor of the property since 1997. The Greater St. Paul's Healing & Deliverance (St.Paul) occupies the second floor of the property as a month-to-month tenant.
Hunt financed the purchase of the property with a $122,600 purchase money mortgage (the purchase money mortgage) from the seller, Max Incorp Limited, which was later assigned to Max Clain on March 15, 2000. In 2007, Hunt sought to refinance the property in order to perform renovations and to pay off the purchase money mortgage. Hunt alleged that, at that time, she became the victim of a fraudulent “sale leaseback” scheme orchestrated by Desmond Grenardo (Grenardo), who allegedly fraudulently told her to execute a contract of sale selling the property to an entity that he created called 1052 Greene Avenue Associates, Inc. (Greene Associates). According to Hunt, Grenardo assured her that the sale of the property to Greene Associates would enable her to use the proceeds of the sale to pay off the purchase money mortgage to Max Clain, renovate the property, and continue to pay the carrying costs of the property as its occupant until she could buy it back from Greene Associates.
By a deed dated December 7, 2007 and recorded on January 28, 2008, Hunt sold the property to Greene Associates. Hunt claims that Grenardo, as part of this fraudulent scheme, simultaneously obtained a mortgage against the property (the mortgage) in the name of Greene Associates, with Richard L. Morgan (Morgan) as the guarantor of the mortgage. Greene Associates executed the mortgage and a promissory note on December 7, 2007 for $483,000 in favor of Interbay Funding LLC (Interbay).
Proceeds of the mortgage were used to satisfy Hunt's purchase money mortgage, as well as a UCC–1 financing statement recorded against the property. Hunt claims, however, that Grenardo wrongfully absconded from the closing, stealing over $200,000 of funds. By an assignment dated February 15, 2008 and recorded on April 3, 2008, the mortgage and promissory note were assigned to Bayview. According to Hunt, Interbay was the parent or an affiliate of Bayview.
On July 25, 2012, Bayview filed a foreclosure action against Greene Associates, Hunt, and others (Bayview Loan Servicing, LLC v. 1052 Greene Ave. Assoc. Inc., Sup Ct, Kings County, index No. 502096/2012) (the foreclosure action), alleging that Greene Associates defaulted in making monthly payments due under the mortgage on June 1, 2010 and thereafter. Greene Associates failed to answer the complaint or otherwise appear in the foreclosure action. On September 25, 2012, Hunt interposed an answer to Bayview's complaint in the foreclosure action, alleging that there was no valid mortgage encumbering the property and the deed that gave title of the property to Greene Associates was void. Hunt also asserted cross claims in the foreclosure action as against Greene Associates, Empire General Abstract, LLC (Empire), and Grenardo for breach of contract, to compel a determination of her interest in the property, and for fraud.
By a March 13, 2013 order in the foreclosure action, now retired Justice David I. Schmidt granted a motion by Hunt for a default judgment against Greene Associates, Empire, and Grenardo. In granting the default judgment against Greene Associates, Justice Schmidt granted Hunt rescission of the deed that she had signed which gave Greene Associates ownership of the property, but held that Hunt's ownership, title, and interest in the property remained subject to the mortgage unless Hunt later obtained a contrary adjudication. Thereafter, by a decision and order dated October 8, 2014 in the foreclosure action, Justice Schmidt granted a motion by Bayview for summary judgment against Hunt and denied a cross motion for summary judgment by Hunt which sought to dismiss the foreclosure action and to declare the mortgage was void, holding that Hunt had failed to produce evidence that Interbay or Bayview had actual or constructive knowledge that Grenardo fraudulently induced her to transfer the property to Greene Associates and that Hunt did not have a bona fide defense to foreclosure.
In 2013, Weinstock contacted Hunt expressing an interest in purchasing the property. According to Hunt, Weinstock indicated to her that he had performed several “short sale” transactions with Bayview and was confident that he could arrange a deal that would allow her to continue to live at the property and continue to operate the Churn school there.
Thereafter, Hunt, as the seller, and Weinstock and Greene Holdings (an entity yet to be formed), as the purchaser, executed a Contract of Sale for the purchase of the property, dated April 2014 (the contract). Schedule C of the contract, entitled “Purchase Price,” provided that the purchase price of the property was $300,000. A provision in the contract that a deposit check in the amount of $35,000, receipt of which was thereby acknowledged by the seller, was crossed out.
By letter dated April 25, 2014, addressed to Greene Associates and Morgan, Bayview approved a discount payoff on the mortgage in the amount of $370,972.50, good through the end of the business day of May 12, 2014. This letter provided that the discount payoff offer was valid only if the borrowers signed a copy of the letter under “Acknowledged and Accepted,” and returned it on or before the end of business on May 12, 2014. This letter further provided that upon receipt by Bayview of the discounted payoff amount of $370,972.50 and a copy of the letter signed by the borrower, Bayview would execute a release and discharge of the mortgage, and, if necessary, would file a withdrawal in connection with any legal action that it had taken to collect this obligation, i.e., the foreclosure action. It stated that no legal action would be halted unless these funds were received on or before the stated date.
A Rider to Contract dated November 10, 2014 (the Rider) was executed by both Hunt and Weinstock, which provided that “[i]n the event of any conflict or ambiguity between the terms of the form contract and this rider, this rider shall govern and the form contract shall be construed accordingly.” Section 18 of the Rider provided, among other things, that the property was sold subject to the existing tenancy on the second floor, the tenancy by the Churn school on the first floor of the property as memorialized by a lease agreement annexed to the contract, and the tenancy of Hunt in a one to two bedroom apartment in the property as memorialized by a lease agreement annexed to the contract. The two annexed leases were executed by Weinstock on behalf of an “Entity to be Formed” on November 10, 2010. Sections 19 and 20 of the Rider provided that the Churn school's lease on the ground floor was to commence upon the closing of the sale of the property, and the lease to Hunt was to commence as soon as the property was permitted for residential occupancy. Section 21 of the Rider set forth that Weinstock had indicated that he intended to perform substantial construction/renovation of the property.
Section 22 of the Rider, entitled “Mortgage Approval,” provided:
“The Purchaser's right to purchase the premises and the Seller's obligation to convey title on the terms expressed herein are hereby expressly contingent upon Seller's mortgagees' approval of the terms of this contract together with any subsequent modifications. Approval' shall mean Seller's mortgagees' written agreement to issue a mortgage satisfaction in exchange for the funds anticipated from the contemplated sale. Seller shall have the option to cancel this contract in the event that any of Seller's mortgagees condition their approval upon Seller assuming personal liability for any outstanding debt owed to said mortgagees by the Seller.”
Section 23 of the Rider provided that Weinstock was prepared to close the transaction for all cash and was not seeking financing. Section 26 of the Rider set forth that Hunt's attorney would hold all deposit monies received pursuant to the contract in escrow until the closing of title. There is no statement in the Rider or the contract as to the amount of the deposit or the receipt of a deposit, and neither the Rider, nor the contract, is signed by Hunt's attorney as an escrow agent. However, a check in the amount of $25,000, dated November 6, 2014, was drawn on the IOLA Account of Yisroel Y. Leshkowitz Attorney at Law, as the attorney for Weinstock, payable to the order of the Law Office of Isa Abdur–Rahman PLLC, as Hunt's attorney, which stated “Deposit 1052 Green Avenue,” in the memo section of that check.
Section 27 of the Rider, entitled “Objections to Title,” provided:
“Purchaser agrees that should any examination of title reveal defect in title or any objections of title, the attorneys for Seller shall be notified in writing by Purchasers, or their attorney, of such defect or objections at least ten business days prior to closing of title and the Seller shall have an additional 30 days to remedy any defect or objections, at Seller's option, but nothing herein shall require seller to remedy such defect or objections. Seller shall not be required to commence any proceedings whatsoever to clear any liens or resolve any objections to title. If Purchaser shall be unwilling to accept title to the premises unless certain proceedings are commenced by the Seller, then the sole liability of Seller is to return the down payment and the contract will be terminated.”
Section 30 of the Rider, entitled “Closing; Possession,” provided that the “[c]losing shall occur within ten (10) days of receipt by Seller of Mortgagee's short sale approval at the offices of either seller's or purchaser's attorney, or some other mutually agreed upon office.”
By a letter dated November 12, 2014, Isa Abdur–Rahman informed Toby Kagan, an associate of the Law Office of Yisroel Y. Leshkowitz, that he was enclosing two copies of the contract and that the contract had not been fully executed because Weinstock had not signed the Rider. He asked Mr. Kagan to have his client do so and return one fully executed original contract to him as soon as possible. He further informed Mr. Kagan that he would not deposit the down payment into his escrow account until he received the fully executed contract, and that “the contract shall not be deemed in force until the down payment has cleared [his] escrow account.”
A December 4, 2014 e-mail from Weinstock to Mr. Abdur–Rahman asked whether he had received his signed Riders. Mr. Adur–Rahman responded that he had received them, but had not yet deposited the down payment check. He stated that he was not going to represent Hunt in a motion to vacate a personal injury judgment against Hunt that was clouding title to the property. He further stated that if Weinstock wanted to hire and pay someone else to do that, he would be as helpful in the process as he could in the interest of consummating the sale transaction, and that he would wait for him to tell him how he would proceed on that before he deposited the check. Weinstock replied to Mr. Abdur–Rahman that he was working with an attorney and would let him know the results.
By an e-mail dated January 7, 2015, Mr. Abdur–Rahman advised Mr. Kagan that Hunt and Weinstock were not in contract as the deposit had not been accepted. He set forth that, as he had stated in his December 5, 2014 e-mail, he would not deposit the check until Weinstock advised him as to his solution for the open judgment. He informed Mr. Kagan that he was advising Hunt that if Weinstock could not fashion a resolution to the judgment before the end of that month, then Hunt may have to vacate and sell the property for its market value in the hope of recouping some value before facing an auction sale and eviction.
By letter dated January 13, 2015, addressed to 1052 Greene Ave Assoc Inc and Morgan, Bayview approved a discount payoff on the mortgage in the amount of $310,000, which was good through the end of the business day of January 29, 2015. Similar to the April 25, 2014 letter, this letter provided that this discount payoff offer was valid only if the borrowers signed a copy of this letter under “Acknowledged and Accepted,” and returned it on or before January 29, 2015 at the end of the business day. This letter further provided that upon receipt by Bayview of this discounted payoff amount of $310,000 and a signed copy of the letter by the borrower, Bayview would execute a release and discharge of the mortgage, and, if necessary, would file a withdrawal in connection with any legal action that it had taken to collect this obligation, i.e., the foreclosure action. It stated that no legal action would be halted unless these funds were received on or before the required date.
By an e-mail dated January 21, 2015, Mr. Abdur–Rahman informed Mr. Kagan that Hunt was willing to enter into the contract and proceed with the closing of the contemplated transaction, provided that Weinstock presented a solution to the outstanding judgment. He asked him to let him know Weinstock's intentions on this issue promptly. Weinstock, in a January 30, 2015 e-mail to Mr. Abdur–Rahman, stated that Rajan Patel (who is Bayview's attorney) was working with the foreclosure attorney to strike a deal with the creditor's attorney.
By letter dated February 24, 2015, Hunt's attorney, Mr. Abdur–Rahman, informed Weinstock's attorney, Mr. Kagan, that “[i]n light of the gravity of her unresolved title issues,” Hunt was thereby rejecting Weinstock's offer to purchase the property. Mr. Abdur–Rahman enclosed Weinstock's original deposit check for $25,000 dated November 6, 2014, which was never deposited or cashed.
By a letter dated March 2, 2015, Weinstock's attorney advised Hunt's attorney that Weinstock rejected his February 24, 2015 letter and that Weinstock was and remains, willing, able, and ready to purchase the property, asserting that the April 2014 contract signed by Hunt was binding and enforceable. He further stated that he was thereby demanding “to set a Closing on or before March 16, 2015, as to which[,] time shall be of the essence.”
On April 29, 2015, Weinstock and Greene Holdings filed this action against Hunt and Bayview, along with a notice of pendency against the property. Weinstock and Greene Holdings' complaint alleges three causes of action. Their first cause of action alleges that Hunt anticipatorily breached the contract by her attorney's February 24, 2015 letter which returned the down payment. Weinstock and Greene Holdings assert that their real estate attorney, by his March 2, 2015 letter, had set a time of the essence date of March 16, 2015, and that Hunt did not appear at the closing and is in breach of contract. Plaintiffs allege that during the three months that Weinstock and Hunt were in contract, they worked diligently to obtain short sale approval to proceed with the transaction from Bayview, and were advised that the approval would be higher than the purchase price in the contract of $300,000. They state that they were still willing to proceed. They seek specific performance of the contract.Weinstock and Greene Holdings' second cause of action seeks to recover their legal fees in the amount of at least $15,000. They allege that because of their fear that Hunt may be attempting to sell the property to another purchaser, they were required to retain an attorney in connection with this action. Weinstock and Greene Holdings' third cause of action alleges that they had intended to purchase the property as an investment property and stood to profit considerably from the sale of the property after all liens were paid. They allege that they have sustained a financial injury in an amount to be determined by the court. They seek damages sustained as a result of Hunt's alleged breach of contract. No answer has yet been interposed by Hunt. Bayview filed an answer, dated May 11, 2015, on May 28, 2015.
On May 29, 2015, Hunt filed her instant motion to dismiss Weinstock and Greene Holdings' complaint as against her. Although issue has not yet been joined by Hunt, Weinstock, on June 30, 2015, filed his cross motion for summary judgment against Hunt pursuant to CPLR 3212, in which he seeks an order directing her to specifically perform and comply with the terms of the contract.
DISCUSSION
Hunt, in support of her motion, asserts that the contract was signed by her and Weinstock solely for the purpose of requesting a short sale evaluation from Bayview. She argues that no binding contract was ever formed because the proposed purchase price in the contract was $300,000, which was less than the amount which Bayview agreed, in its payoff letters, to accept in order to satisfy the mortgage and terminate the foreclosure action. She points to the fact that the down payment check was never cashed, and contends that this demonstrates her intention not to be bound and the fact that the contract and the Rider were not binding.
Weinstock argues that Hunt, by her assertion that the contract was signed for the purpose of determining whether Bayview would accept a short sale, is attempting to create an ambiguity through parol evidence in order to contradict the terms of the contract. Weinstock, in his complaint, however, admits that there was a diligent attempt to obtain “short sale approval” from Bayview to proceed with the sales transaction. Moreover, the terms of the Rider expressly referred to Bayview's approval of the terms of the contract.
As set forth above, section 22 of the Rider made Weinstock's right to purchase the property and Hunt's obligation to convey title expressly contingent upon Bayview's approval of the terms of the contract, and defined “approval” as meaning Bayview's written agreement to issue a mortgage satisfaction in exchange for the $300,000 in funds to be received from the sale of the property. Section 30 of the Rider also required that the closing would occur within 10 days of Hunt's receipt of such short sale approval by Bayview. As evidenced by the April 28, 2014 and January 13, 2015 discount payoff letters, Bayview never gave its written agreement to issue a mortgage satisfaction in exchange for the $300,000 funds to be received from Weinstock for the sale of the property. Furthermore, these discount payoff letters required that they be acknowledged and accepted by Greene Associates and Morgan in order for them to be valid, and this never occurred.
It is well established that “[a] condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises' “ (Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690 [1995], citing Calamari and Perillo, Contracts § 11–2, at 438 [3d ed]; see also Ashkenazi v. Kent S. Assoc., LLC, 51 AD3d 611, 611 [2d Dept 2008] ; Klewin Bldg. Co., Inc. v. Heritage Plumbing & Heating, Inc., 42 AD3d 559, 560 [2d Dept 2007] ; Preferred Mtge. Brokers v. Byfield, 282 A.D.2d 589, 590 [2d Dept 2001] ). “[I]t is for the court to decide, as a matter of law, whether an express condition precedent to performance exists under the terms of a contract” (Rooney v. Slomowitz, 11 AD3d 864, 865 [3d Dept 2004] ; see also Two Guys from Harrison–N.Y. v. S .F.R. Realty Assoc., 63 N.Y.2d 396, 403 [1984] ).
“As a general rule, it must clearly appear from the agreement itself that the parties intended a provision to operate as a condition precedent” (Kass v. Kass, 235 A.D.2d 150, 159 [2d Dept 1997], affd 91 N.Y.2d 554 [1998] ). Here, the unambiguous and clear language of section 22 of the Rider shows that Hunt and Weinstock intended to make Bayview's written agreement to issue a mortgage satisfaction in exchange for the $300,000 funds to be received from the sale of the property a condition precedent to closing (see Oppenheimer & Co., 86 N.Y.2d at 691 ). Furthermore, the very face of section 30 of the Rider reflects an understanding that the closing would occur only upon the occurrence of this condition precedent. Therefore, Hunt had the right to cancel the contract upon the non-occurrence of the condition precedent.
Weinstock does not allege that this condition precedent was ever satisfied. Rather, Weinstock admits, in the complaint, that he was advised by Bayview that the amount for approval would be higher than the purchase price of $300,000. Weinstock does not claim to have ever offered to pay in excess of the purchase price offered in the contract to satisfy the mortgage. Thus, Hunt did not obtain the approval required by the contract. Indeed, Weinstock annexes a payoff statement good through July 1, 2015, issued after this action was filed, which states that the total amount due to pay off the loan in full was $1,115,038.62 as of that time.
Weinstock argues, however, that he was still willing to proceed with the contract. He points to the language in section 22 of the Rider that Hunt had the option to cancel the contract in the event that Bayview conditioned its approval upon Hunt assuming personal liability for any outstanding debt and contends that Hunt has no outstanding debt to Bayview because the mortgage on the property was placed against it by Greene Associates after she sold it. However, “[w]hen interpreting a contract, the construction arrived at should give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the parties' expressions so that their reasonable expectations will be realized” (Fernandez v. Price, 63 AD3d 672, 675 [2d Dept 2009] ; see also W.W.W. Assoc. v.. Giancontieri, 77 N.Y.2d 157, 162 [1990] ; McCabe v. Witteveen, 34 AD3d 652, 654 [2d Dept 2006] ). Weinstock's narrow construction of section 22 of the Rider ignores the preceding sentence defining “approval” as requiring Bayview's written agreement to issue a mortgage satisfaction in exchange for the funds from the sale to Weinstock.
Furthermore, section 30 of the Rider made the occurrence of the closing dependent upon Hunt's receipt of Bayview's short sale approval. “By definition, a short sale is not an arm's-length sale,” but, “[i]nstead, it is the term given to a transaction where the mortgagee/lender ... having a recorded interest ... in the borrower's property which is in the process of being foreclosed agree[s] to accept less than the full amount due” ‘ (Matter of CB Walden Vil.LLC v. Board of Assessment Review, 44 Misc.3d 1214[A], 2014 N.Y. Slip Op 51117[U], *3 [Sup Ct, Erie County 2014], quoting Law of Distressed Real Estate, § 3B:8, November 2013]; see also HSBC Bank USA v. McKenna, 37 Misc.3d 885, 914 [Sup Ct, Kings Co 2012] ). “A short sale’ arises when the mortgagee agrees to permit the mortgagor to sell the property to a bona fide purchaser at the current fair market value, which is an amount less than the monies owed by the mortgagor on the mortgage and note. The lender agrees to accept the negotiated sale price in full settlement of the mortgagor's obligation under the mortgage and note and release the mortgagor of any liability. [However], there are situations where the lender only will release the lien on the property created by the mortgage and not the borrower[']s obligation to repay the balance due on the note” (Raiolo v. B.A.C Home Loans, 29 Misc.3d 1227[A], 2010 N.Y. Slip Op 52065[U], *4 [Civil Ct, Richmond County 2010] ). Failure to construe sections 22 and 30 of the Rider as requiring Bayview's written agreement to issue a mortgage satisfaction in exchange for the $300,000 funds to be received from Weinstock for the sale of the property as a condition precedent to closing would render these sections meaningless and defeat the purpose of these provisions and Hunt's intent to enter into the contract in order to avoid foreclosure since, pursuant to the payoff letters, the $300,000 sales price would not end the foreclosure action.
Weinstock also argues that section 22 of the Rider may be waived by Hunt. However, pursuant to section 17.02 of the contract, no provision of the contract could be waived except by an instrument signed by the party against whom the enforcement of such waiver is sought. There is no showing that Hunt ever signed any instrument or otherwise waived the requirement of section 22 of the Rider. Rather, Hunt's intent not to be bound is evidenced by the fact that her attorney never deposited the down payment check.
Weinstock further argues that Hunt's claim is moot because he stands ready, willing, and able to satisfy payment of the mortgage as well as to pay off any and all liens and judgments against the property. This argument is unavailing. Weinstock has not provided a sworn affidavit by him or made any showing whatsoever that he has these funds or that he had agreed to pay them prior to Hunt's cancellation of the contract (see Johnson v. Phelan, 281 A.D.2d 394, 395 [2d Dept 2001] ).
With respect to the title issues, as set forth above, section 27 of the Rider provided that if Weinstock were unwilling to accept title to the property unless certain proceedings were
commenced by Hunt to clear any liens or resolve any objections to title, Hunt's sole liability to Weinstock was to return the down payment and the contract would be terminated. The e-mails submitted show that there was a cloud upon the title to the property and that this issue had not been resolved at the time that Hunt's attorney returned the down payment check. In his February 24, 2015 letter, Hunt's attorney rejected Weinstock's offer to purchase the property because of “the gravity” of the unresolved title issues. In any event, Hunt's obligations were expressly contingent upon Bayview's short sale approval and this condition precedent to the sale of the property was never satisfied.
Thus, inasmuch as Hunt did not obtain the approval by Bayview required by the contract, she was entitled to cancel it because a condition precedent for closing was not satisfied (see Matter of Esposito v. City of Rochester, 81 AD3d 1381, 1382–1383 [4th Dept 2011] ). Consequently, Weinstock has failed to establish his entitlement to specific performance of the contract, and Hunt's motion, insofar as it seeks to dismiss his first cause of action for specific performance, must be granted, and plaintiff's cross motion must be denied (see CPLR 3211[a][1], [7] ; One W. Bank FSB v. Musumeci, 128 AD3d 1034, 1035 [2d Dept 2015] ).
Weinstock is also not entitled to attorneys' fees, as sought in his second cause of action. Weinstock has not prevailed in this action and, in any event, in the absence of any statute providing for the recovery of attorneys' fees, such fees may only be recovered if they are contractually authorized (see Neighborhood Hous. Servs. of N.Y. City, Inc. v. Hawkins, 97 AD3d 554, 554 [2d Dept 2012] ; Rawcliffe v. Aguayo, 108 Misc.2d 1027, 1032 [Sup Ct, Kings County 1981] ). There is no provision in the contract under which Weinstock would be entitled to such attorneys' fees. In addition, Weinstock's third cause of action for damages is not viable and must be dismissed in view of the court's finding that a condition precedent to Hunt's performance under the contract was never satisfied (see CPLR 3211[a][1], [7] ).
Since the court has found that dismissal of the complaint is mandated for the reasons discussed above, it is unnecessary to address Hunt's additional arguments to dismiss the complaint, pursuant to CPLR 3211(a)(3), based upon Real Property Law § 265–a, and, pursuant to CPLR 3211(a)(10), based upon the failure to join the Churn school, Greene Associates, and Morgan as necessary parties.
With respect to Bayview, the court notes that CPLR 3212(b) provides that “[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.” Thus, pursuant to CPLR 3212(b), the court, upon a search of the record on Weinstock's summary judgment cross motion, is empowered to grant summary judgment to Bayview, upon a finding that Weinstock and Greene Holdings' complaint against it is legally insufficient.
Weinstock and Greene Holdings' complaint alleges claims for specific performance, recovery of attorneys' fees, and recovery of damages for breach of contract as against Bayview. Bayview, in its answer, admits that Weinstock had been advised that the current amount that it would accept in a short sale of the property was greater than $300,000. Bayview alleges, in its first defense in its answer, that the complaint fails to state a cause of action, and, in its second defense, that since all prior short sale pay off letters issued by it have expired, Weinstock and Greene Holdings have no basis in fact or in law to compel it to accept a compromised payoff of its mortgage. Since Weinstock and Greene Holdings have failed to allege any viable claim as against Bayview, the court, upon a search of the record, must grant summary judgment dismissing their complaint as against Bayview (see CPLR 3212[b] ).
CONCLUSION
Accordingly, Hunt's motion to dismiss the complaint in its entirety and to cancel the notice of pendency filed against the property by Weinstock and Greene Holdings is granted. Weinstock's cross motion for summary judgment is denied. Upon a search of the record, pursuant to CPLR 3212(b), summary judgment dismissing the complaint as against Bayview is also granted.
This constitutes the decision, order, and judgment of the court.