Stenglein v Sammarino

[*1] Stenglein v Sammarino 2005 NY Slip Op 50591(U) Decided on January 24, 2005 Civil Court, Richmond County DiDomenico, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 24, 2005
Civil Court, Richmond County

Jane Stenglein, Plaintiff,

against

Frank Sammarino, Defendant.



031778/2004



PlaintiffPro Se

Defendant:Jacobi, Sieghardt, Bousanti & Piazza, P.C.

235 Forest Avenue

Staten Island, New York 10301(718) 442-4600

By: Christopher J. Fitzpatrick, Esq.

Catherine M. DiDomenico, J.

This matter came before this Court for a trial on damages pursuant to the decision and order of (Straniere, J.) dated December 9, 2004, wherein summary judgment on the issue of liability was granted to the plaintiff. The trial was held on January 11, 2004. At the trial, plaintiff proceeded pro se; defendant was represented by counsel. Plaintiff testified on her own behalf and submitted documents (Exs. 1-6). Defendant testified on his own behalf and called Gail Straussberg, a real estate broker as a witness. Defendant also submitted documents (Exs. A G). At the conclusion of trial, this Court reserved decision.

For the reasons set forth below, plaintiff is awarded damages in the amount of $475.00 with interest and costs in accordance with the real estate contract of sale entered into between the parties.

The Court makes the following findings of fact and conclusions of law based on the testimony and evidence adduced at trial.

On February 28, 2003, plaintiff and defendant entered into a contract of sale pursuant to which plaintiff agreed to purchase a condominium unit ("Unit") from the defendant for $161,500.00 (the "Contract"; Def. Ex. A). Plaintiff tendered $5,000.00 as the downpayment. The Contract provided for an April 15, 2003 closing date.

Plaintiff was represented by legal counsel at the time she entered into the Contract and had reviewed the Contract with counsel prior to signing it. At the time plaintiff signed this contract, she knew that defendant had two tenants occupying the premises (a mother and daughter) who would have to move out before she could gain occupancy. One tenant moved out quickly. The other tenant, Ms. Lillian Berger, remained.

On March 4, 2003, defendant's counsel wrote to Ms. Berger advising her that the Unit was being sold and that she would have to vacate the premises no later than April 1, 2003 (Def. Ex. E). On March 26, 2003, defendant's counsel wrote to Ms. Berger again and offered her $950.00 to vacate by April 30, 2003 (Def. Ex. F). Notwithstanding these efforts, Ms. Berger remained. On April 14, 2003, defendant served Ms. Berger with a Notice to Terminate Tenancy. The holdover proceeding was filed on June 23, 2004. It is undisputed it cost defendant approximately $1380.00 in legal fees to evict Ms. Berger. [*2]

At trial, Gail Straussberg, a licensed real estate broker testified that she was the broker that had shown the Unit to plaintiff. During this period, she also served as Ms. Berger's broker, taking Ms. Berger to look at numerous apartments and condominiums. This witness also testified that, in her conversations with Ms. Berger, Ms. Berger indicated that she intended to move voluntarily.

Plaintiff and defendant agreed to adjourn the original closing date from April 15, 2003 to May 15, 2003 to allow additional time for the tenant to vacate. On May 5, 2003, plaintiff sold her existing home pursuant to the terms of a contract of sale entered into with a third party. Plaintiff stated that, at the May 5, 2003 closing, her attorney told her that defendant was forced to begin eviction proceedings against Ms. Berger and that the landlord-tenant case could take months to resolve. Plaintiff placed her belongings in storage, moved in with her friend in Queens, and proceeded to commute every day to her job on Staten Island.

On June 4, 2003, plaintiff's counsel cancelled the Contract and demanded return of plaintiff's $5,000.00 down payment (Def. Ex. B). On June 13, 2003, defendant's attorney advised plaintiff that the seller could not deliver the Unit vacant in a timely fashion and returned the down payment (Pl. Ex. 2). After deducting $475.00 for title charges and departmental searches performed by Forest Abstract Services, plaintiff's counsel forwarded a check to plaintiff in the amount of $4,525.00 (Pl. Ex. 1). Sometime in August 2003, plaintiff purchased another condominium unit, paying $20,000.00 more than she would have paid defendant for his Unit.

Procedural Background.

Plaintiff commenced this action on February 27, 2004. Defendant answered the Complaint, alleging that any damages awarded plaintiff must be limited as set forth in the limitations on damages provisions contained in the Contract, specifically paragraph 19 of the Contract and paragraph 7 of the Rider made a part thereof (Def. Ex. A). On August 31, 2004, defendant moved to dismiss plaintiff's complaint relying on these same contract terms. The Motion Court did not have the benefit of the testimony and the documentary evidence this Court had at trial. In a Decision dated December 9, 2004, the Motion Court denied defendant's motion to dismiss and sua sponte granted summary judgment to plaintiff on liability. In that opinion, the Motion Court found, on the papers before it, that defendant had not proceeded in a timely fashion to remove the tenant. Careful review of the court file reveals that the Contract of Sale annexed to the Notice of Motion was dated February 28, 2002. Upon inquiry concerning this date at trial, the parties advised this Court that the date contained on the contract contained a typographical error as the contract was actually entered into on February 28, 2003. Since this typographical error was not brought to the Motion Court's attention, the Motion Court had concluded that defendant had waited some 14 months before seeking to evict the tenant, rather than the several weeks that had actually passed.

At trial, Plaintiff sought a total of $4,302.88 in damages representing amounts she incurred for title charges and departmental searches ($475.00); for living expenses from May 5 - September 2, 2003 ($1,050.00); for storage of her furniture during this period ($2,180.51); for disinfecting certain furniture items after removal from storage ($447.37); for tolls incurred during her daily commute from Queens ($240.00); and for court costs ($99.65). Defendant concedes he is responsible to plaintiff for title and departmental search charges in the amount of $475.00, but argues that the remaining damages sought by plaintiff are barred by the express terms of the [*3]Contract.

Pursuant to the Contract, defendant was obligated to "deliver exclusive possession of the Unit at the Closing, vacant, broom clean and free of tenancies or other rights of use or possession". (Def. Ex. A; ¶ 11; see also Rider ¶ 2 (seller agrees to deliver possession "vacant and broom clean"). In addition, the Contract contains two additional terms relevant to the Court's determination herein: Paragraph 19 and paragraph 7 of the Rider. Paragraph 19 provides, in pertinent part, as follows: Notwithstanding any other provisions of this contract, express or implied, or any contrary rule of law or custom, if seller shall be unable to convey the Unit in accordance with this Contract . . . and if Purchaser elects not to complete this transaction without abatement of the Purchase Price, the sole obligation and liability of the Seller shall be to refund the Downpayment to Purchaser, together with the reasonable cost of the examination of title to, and liability of the Seller shall be to refund the Downpayment to purchase, together with the reasonable cost of the examination of title to, and departmental searches in respect to, the Unit, and upon the making of such refund this Contract shall be deemed canceled and of no further force or effect and neither party shall any further rights against, or obligations or liabilities to, the other by reason this contract. However, nothing contained in this subpara. 19(d) shall be construed to relieve seller from liability due to a willful default. (italics supplied, Def. Ex. A).

The Contract Rider, at paragraph 7, provides, as follows:

If any clause of this contract requires the expenditure of over $500.00 by the seller to comply, then the seller may rescind this contract and upon return to the purchaser of the sums paid on signing of this contract and the net title fees for examination of title to the premises, all future liability on the part of the seller herein shall cease and this contact shall be cancelled and be of no further force and effect and the seller shall not be liable for any other costs or damages whatsoever. (italics supplied, Def. Ex. A).

The collective effect of these provisions is to limit defendant's liability to plaintiff to return of the down payment and reimbursement of her title and departmental search charges. Here, there is no dispute that defendant Seller was forced to evict the tenant at a cost of well over $500.00; that Plaintiff's counsel elected to cancel the Contract when defendant could not deliver the premises vacant; and that plaintiff's down payment was, in fact, returned to her when demanded by her lawyer. A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. Greenfiled v. Philles Records, Inc., 98 NY2d 562 (2002). Further, the law is settled that parties to a contract for the sale of real property may agree to restrict liability consequent to a breach, provided the parties act in good faith and the default is not wilful or deliberate. Mancini-Ciolo, Inc. v. Scaramellino, 118 AD2d 761 (2d Dept. 1986).

At trial plaintiff argued, (1) that the Contract terms limiting damages only apply where there is something akin to an "Act of God" that prevents the sale from going through; and (2) that defendant can not avail himself of these provisions because he failed to take timely steps to [*4]remove the tenant from occupancy of the premises. See e.g. BGW Development Corp. v Mount Kisco Lodge No. 1552 of Benev. and Protective Order of Elks of the United States of America, Inc., 247 AD2d 565 (2d Dept. 1998).

As to the first argument, plaintiff did not point to any law or authority for restricting application of the Contract limitation terms to an "Act of God" and this Court is not aware of any such cases. Courts have held, however, that the event causing the inability to convey title must be "beyond the control of the parties" and the Court therefore construes the pro-se plaintiff's argument to rest on this line of cases. Mokar Property Corp. v. Hall, 6 AD2d 536, 539 (1st Dept. 1958). Here, however, the Court finds the tenant's refusal to voluntarily vacate the premises, notwithstanding defendant's demands, was sufficiently outside the parties control to allow enforcement of the damage limitation provisions of the Contract.

As to plaintiff's second argument, the Court finds that defendant moved quickly to vacate the tenant. As set forth above, within 5 days of the Contract signing, defendant advised Ms. Berger in writing that she had to vacate; and some 22 days later defendant offered her $950.00 to vacate. The Court further credits the testimony of Ms. Straussberg, the broker who testified that throughout the month of March and into early April 2003, she was taking Ms. Berger out to view potential apartments, and that during this time, Ms. Berger professed her intent to leave voluntarily. When defendant realized that Ms. Berger would not leave voluntarily he served the Notice To Terminate Tenancy on April 14, 2003, some 45 days or so after the Contract was signed. Based on these undisputed facts, I decline to adopt plaintiff's view that defendant unduly delayed in removing Ms. Berger.

For the foregoing reasons, plaintiff is awarded pursuant to the contract limited damages in the amount of $475.00 for title charges and departmental searches, together with interest, costs and disbursements.

This constitutes the decision and order of this Court.

Dated: January 24, 2005

Staten Island, New York

__________________________

Catherine M. DiDomenico

Judge, Civil Court

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