Aristone Realty Capital, LLC v 9 E. 16th St. LLC

Aristone Realty Capital, LLC v 9 E. 16th St. LLC 2012 NY Slip Op 02757 Decided on April 12, 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 April 12, 2012
Mazzarelli, J.P., Catterson, DeGrasse, Manzanet-Daniels, Román, JJ.
7337 651302/11

[*1]Aristone Realty Capital, LLC, Plaintiff-Respondent,

v

9 E. 16th Street LLC, et al., Defendants-Appellants, Crowell & Moring, et al., Defendants.




D'Agostino, Levine, Landesman & Lederman, LLP, New York
(Bruce H. Lederman of counsel), for appellants.
Dunnington, Bartholow & Miller LLP, New York (Luke
McGrath of counsel), for respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered December 6, 2011, which denied the motion of defendants 9 E. 16th Street LLC, Regal Real Estate, LLC d/b/a Regal Investments Inc., Maurice Laboz and William Punch for, inter alia, summary judgment dismissing plaintiff's claim for specific performance, unanimously affirmed, with costs.

In this action arising out of a failed real estate transaction, purchaser and seller met with their counsel and allegedly agreed upon the terms and conditions of the sale. Thereafter, the attorneys exchanged e-mail communications, culminating in seller's counsel's transmittal of an "execution version" of the contract that allegedly contained the previously agreed upon terms and provided the purchaser with wiring instructions for payment of the deposit. Unlike an earlier e-mail that transmitted a "proposed contract" subject to his client's "review and modification," the latter e-mail was not so qualified. In response to the offer e-mail, purchaser's counsel exchanged a signature page executed by his client and purchaser tendered payment of the deposit. Under these circumstances, triable issues of fact exist as to the viability of plaintiff's claim for specific performance, despite the lack of a fully executed contract (see Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 AD3d 476 [2011]; cf. Naldi v Grunberg, 80 AD3d 1, 6 [2010], lv denied 16 NY3d 711 [2011]).

Further, a triable issue of fact exists as to whether seller's attorney, who copied his client on the relevant e-mail communications without any protest, had apparent authority to act on seller's behalf (see Korin Group v Emar Bldg. Corp., 291 AD2d 270 [2002]). Plaintiff's demand for, and acceptance of, a return of the deposit, in response to, inter alia, concerns about the [*2]integrity of the escrowed deposit, while allegedly reserving its right to enforce the contract and pursuing a countersigned contract, did not evidence, as a matter of law, an intent to cancel any contract formed.

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

ENTERED: APRIL 12, 2012

CLERK