2994 Coney Is. Ave., LLC v Exclusive Props. Dev. Group, Inc.
Annotate this CaseDecided on November 9, 2005
Supreme Court, Kings County
2994 Coney Island Avenue, LLC, et ano., Plaintiffs,
against
Exclusive Properties Development Group, Inc., Defendant.
29759/03
Bert A. Bunyan, J.
Upon the foregoing papers, the motion by defendant Exclusive Properties Development Group, Inc. for an order, among other things, granting summary judgment dismissing the complaint herein pursuant to CPLR 3212 and the cross- motion by plaintiff 2994 Coney Island Avenue, LLC for an order, pursuant to CPLR 3212, granting summary judgment in its favor with respect to the complaint and dismissing defendant's counterclaims are denied.
On or about February 28, 2003, plaintiff, as purchaser, and defendant, as seller, entered into a contract of sale for the premises known as 722 Banner Avenue/2994 Coney Island Avenue in Brooklyn. The contract provided, among other things, that, with respect to the closing date, "time [was] of the essence." In its complaint, plaintiff alleges that it was ready, willing and able to close on the rescheduled closing date of August 8, 2003, but that defendant, which "wants to sell the property to another buyer for more money," was not [*2]present. Therefore, plaintiff seeks specific performance of the contract and unspecified money damages.
In its motion, defendant notes that plaintiff previously moved for summary judgment and it "cross-moved to retain the down payment." By order dated May 10, 2004, this court, in defendant's words, "denied both motions as premature and held that questions of fact were presented as to whether the contract of sale was amended and whether the purchaser was ready, willing and able to perform, which precluded summary judgment to either party." Following the denial of the motion and cross-motion, defendant asserts that "extensive discovery was conducted." In the instant motion, defendant points out that plaintiff has admitted in the complaint that August 8, 2003 was a firm closing date and that discovery has purportedly confirmed that neither plaintiff nor a title company representative appeared at the scheduled closing, nor did plaintiff have bank checks on hand to complete the transaction. Therefore, defendant urges that the complaint herein should be dismissed and that summary judgment be granted in its favor with respect to its counterclaim seeking retention of the contract deposit.
In its cross-motion, plaintiff faults defendant for failing to mention that defendant did not appear at the closing on August 8, 2003. According to plaintiff, on August 6, 2003, both parties agreed to adjourn the closing for two weeks. Plaintiff notes that, in its prior order, this court found that an issue of fact existed regarding the "cause of the delays in closing," not simply whether plaintiff was ready, willing and able to perform. Plaintiff submits a copy of its bank statement, dated August 12, 2003, which indicates a balance in excess of that required to complete the transaction.
In opposition to the cross-motion, defendant characterizes plaintiff's request for relief as untimely and asserts that, notwithstanding plaintiff's bank account balance, plaintiff "never obtained any bank checks payable to the seller" and "never tendered the balance of the purchase price." Defendant also argues that plaintiff "anticipatorily breached the contract of sale by purporting to adjourn the closing [without defendant's consent] thereby excusing the seller from appearing at a closing which it [w]as told would not take place."
Multiple summary judgment motions in the same action are discouraged in the absence of a showing of newly discovered evidence or other sufficient cause (see 2009 85th Street Corp. v WHCS Real Estate Ltd. Partnership, 292, AD2d 520 [2002]). However, the policy has no application where the first motion, made before discovery, is denied on the ground of the existence of a factual issue which, through later uncovering of the facts, is resolved or eliminated (see Freeze Right Refrigerator & Air Conditioning Services v City of New York, 101 AD2d 175, 181 [1984]). In this case, contrary to defendant's contention, the order of May 10, 2004 did not characterize the prior motion and cross-motion as premature. Moreover, the most recent submissions of the parties do not resolve issues as to the cause of the delay in closing and plaintiff's ability to perform, the
basis for denial of the earlier requests for relief. The court notes that the parties even dispute whether the purported adjournment was agreed to by both sides. Accordingly, the instant motion and cross-motion are denied.
[*3]
The foregoing constitutes the decision and order of this court.
E N T E R,
J. S. C.
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