H Eighth Ave. Assoc., LLC v Stessa Corp.

H Eighth Ave. Assoc., LLC v Stessa Corp. 2012 NY Slip Op 01371 Decided on February 23, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 23, 2012
Tom, J.P., Friedman, Sweeny, Moskowitz, DeGrasse, JJ.
6902 103296/10

[*1]H Eighth Avenue Associates, LLC, Plaintiff-Respondent-Appellant,

v

Stessa Corp., Defendant-Appellant-Respondent.




Akin Gump Strauss Hauer & Feld LLP, New York (Sean E.
O'Donnell of counsel), for appellant-respondent.
Herrick, Feinstein LLP, New York (Ross L. Hirsch of counsel),
for respondent-appellant.

Order, Supreme Court, New York County (Martin Shulman, J.), entered November 7, 2011, which, insofar as appealed from, granted plaintiff's motion for summary judgment dismissing defendant's counterclaim for specific performance, denied defendant's cross motion for summary judgment on the counterclaim and denied plaintiff's motion for sanctions, unanimously affirmed, with costs.

Plaintiff seller could not have cured the notice of pendency problem by the latest of the closing dates selected through no fault of its own, and properly demanded that defendant purchaser elect its remedies pursuant to the limitation of remedies
provision in their contract of sale (see Mehlman v 592-600 Union Ave. Corp., 46 AD3d 338, 342-343 [2007]; Meisels v 1295 Union Equities Corp., 306 AD2d 144, 145 [2003]). The seller properly terminated the contract in light of the purchaser's failure to make the election and demonstrate its financial ability to close (see Gindi v Intertrade Internationale Ltd., 50 AD3d 575 [2008]). In view of the purchaser's counsel's actual knowledge of certain pending litigation, the seller's inaccurate representation that no litigation was pending could not benefit the [*2]purchaser (see Sisler v Security Pac. Bus. Credit, 201 AD2d 216, 221-224 [1994], lv dismissed 84 NY2d 978 [1994]).

We have considered the parties' other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2012

CLERK