Oppisso v Commerce Bank, N.A.

[*1] Oppisso v Commerce Bank, N.A. 2006 NY Slip Op 50442(U) [11 Misc 3d 1069(A)] Decided on March 21, 2006 Supreme Court, Suffolk County Spinner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2006
Supreme Court, Suffolk County

LAWRENCE OPPISSO, MARIE LOUISE OPPISSO and VEENA A. SHETTY, Plaintiffs,

against

COMMERCE BANK, N.A., Defendant.



2004-27345



Lite & Russell, Esqs.

Attorneys for Plaintiffs

212 Higbie Lane

West Islip, New York 11795

Berkman, Henoch, Peterson & Peddy, P.C.

Attorneys for Defendant

100 Garden City Plaza

Garden City, New York 11530

Jeffrey Arlen Spinner, J.

Upon the following papers numbered 1 to51 read on this Motion:

Plaintiffs' Notice of Motion & Supporting Papers 1-16, & Exhibits 1-6

Defendant's Affirmation In Opposition & Supporting Papers 17-39, & Exhibits A-D

Plaintiffs' Reply Affirmation & Supporting Papers 40-47, & Exhibits 1-2

Defendant's Sur-Reply Affirmation & Supporting Papers 48-51

ORDERED, that the application of Plaintiffs is hereby granted in all respects.

Plaintiffs move this Court for an Order, pursuant to CPLR 3212, granting summary judgment in their favor, and further awarding $100,000.00 in liquidated damages to the Plaintiffs (divided as follows: $75,000.00 to Plaintiffs OPPISSO and $25,000.00 to Plaintiff SHETTY, representing the respective downpayments made by Defendant to the various Plaintiffs regarding real estate contracts of sale for separate parcels of real property owned by said Plaintiffs).

To grant summary judgment, it must clearly appear that there are no material issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 165 NYS2d 498, 144 NE2d 387 [1957] ).

The Plaintiffs have submitted to the Court two Contracts of Sale, one entered into between Plaintiffs OPPISSO and Defendant, and the other entered into between Plaintiff SHETTY and Defendant, each requiring the downpayments referenced herein above. There is no dispute that the submitted Contracts of Sale were entered into by the parties; neither do any of the parties dispute the language contained therein; and no one disputes that said referenced downpayments were in the referenced amounts and that they were paid over by Defendant to Plaintiffs' Counsels. [*2]

Whomsoever drafted the contracts, they were executed by all the parties involved in this action, and contain very distinctive language which sets forth specific terms relevant to the manner in which Defendant wanted to develop this property, what Defendant needed to do toward that end, and how Defendant could terminate its obligations under these contracts should said development be unobtainable. The language is exceedingly clear and unequivocal.

At § 19 of the contracts, entitled "Due Diligence Period", the contracts state:

"(a)Purchaser shall have the right, within ninety (90) days after the date hereof, to have the Premises inspected during reasonable hours, after reasonable notice to Seller and to conduct a due diligence investigation of the Premises at Purchaser's sole cost and expense, including, without limitation, a Phase I environmental audit and such other investigations deemed necessary by Purchaser in its sole discretion regarding the condition of the Premises and the possible future development thereof (the "Due Diligence Investigation").

(b)Purchaser may elect to cancel this Agreement, by written notice to the Seller (the "Termination Notice") delivered within said ninety (90) day period if Purchaser is not satisfied with the results of the Due Diligence investigation for any reason. If Purchaser cancels this Agreement pursuant to this § 19, Seller shall promptly cause the Downpayment and any interest thereon to be refunded to Purchaser, whereupon neither party shall have any further liabilities under this Agreement."

These contracts were executed on May 16, 2003, and therefore the Due Diligence Period ended on or about August 14, 2003.

In the affidavit of Anthony Limoli, identified in his affidavit as the Zoning Administrator of the Town of Islip, said affidavit having been submitted by Defendant herein, Mr. Limoli states, under oath, at Paragraph 2 thereof, that:

"Some time in July of 2003, I advised Mr. Donald Rettaliata, Esq. that the proposed multiple drive through bank facility could not be supported by the Town of Islip Planning Department at the northwest corner of Pat Drive and Montauk Highway...".

In the affirmation of Donald A. Rettaliata, Esq., identified in his affirmation as having 35 years experience as an attorney in land use matters, said affirmation also having been submitted by Defendant herein, Mr. Rettaliata states, under penalty of perjury, at Paragraph 6 thereof, that :

"On July 30, 2003, I met with Mr. Limoli to discuss the site plan. At that meeting, Mr. Limoli informed me explicitly and without reservation that the site plan, and the proposed use, were unacceptable and that a bank branch could not be approved for the location in question...".

Therefore, based upon information placed in evidence by Defendant, Defendant knew, within the Due Diligence Period, that the Town of Islip would not look favorably upon its application at the location Defendant had entered into contract to purchase from Plaintiffs, and had ample time to so inform Plaintiffs, pursuant to § 19 of the Contracts of Sale with Plaintiffs, thereupon terminating said contracts and any further obligations to Plaintiffs, as well as rightfully demanding return of its downpayments, as per the contracts. Defendant has submitted no documentation to prove [*3]a"Termination Notice" was issued by them to Plaintiffs, nor has it alleged such a termination in its submissions to the Court. Defendant had obligations and rights clearly set forth in the contract, and while it met its obligation to investigate due diligence internally, it failed to so inform Plaintiffs, and failed to exercise its right to terminate the contract. There is no triable issue of fact remaining as to Defendant's failure to terminate the contract within the Due Diligence Period and regain its downpayments.

At § 20 of the contracts, entitled "Approval Contingency.", the contracts state:

"(a)The obligations of Purchaser hereunder are conditioned upon the Purchaser obtaining all final and non-appealable approvals (local, state, County and Federal, whether legislative, administrative or regulatory), including, without limitation, zoning variances and building permits, (collectively the "Approvals") required for the construction of Purchaser's 4,000 square foot (approximately) bank building with four (4) drive-through teller stalls, parking facilities, entrance, signage, and other improvements, substantially as shown on the Conceptual Plan annexed hereto as Exhibit A (collectively, the Proposed Improvements").

(b)Purchaser shall (I) make prompt application for the Approvals to all required govern-mental agencies and submit all surveys, plans, descriptions and all other information requested thereby (collectively, the "Approval Applications"), (ii) pay all application fees, architects' fees, engineers' fees, surveyors' fees and all other expenses (other than Seller's attorneys' fees) related to such Approval Applications; and (iii) pursue such Approval Applications with diligence and in good faith. Seller shall cooperate with Purchaser (at Purchaser's sole cost and expense other than with respect to Seller's attorneys fees) in Purchaser's efforts to obtain the approvals, and shall execute such applications and attend such meetings and hearings as are reasonably required by the Purchaser."

If the Purchaser fails to obtain all of the Approvals within two hundred seventy five (275) days after the date of this Contract (the "Approval Period"), Purchaser may elect to cancel this Contract by written notice to Seller given within ten (10) days after the expiration of the Approval Period, whereupon this Contract shall be deemed cancelled and of no further force and effect, Seller shall promptly cause the Downpayment, together with any interest thereon, to be returned to Purchaser, and neither party shall have any liability to the other by virtue of this Contract. Purchaser shall have the right to extend the Approval Period for an additional thirty (30) days upon written notice to Seller. Notwithstanding the foregoing, Purchaser may elect, at any time, to waive the Approval contingency set forth in this Section 20, and/or accelerate the time and date of Closing upon no less than thirty (30) days prior written notice to Seller.

Once again, these contracts were executed on May 16, 2003, and therefore the Approval Period ended on or about February 15, 2004, and the ten day period thereafter for notice to Sellers ended on February 25, 2004, and if Purchaser/Defendant had requested a thirty day extension, that would have ended on March 15, 2004, and the notice period on March 25, 2004. But no documentation has been submitted by Defendant demonstrating that it requested any extension.

In the aforementioned affirmation of Donald A. Rettaliata, Esq., submitted by Defendant herein, Mr. Rettaliata states, under penalty of perjury, at Paragraph 9 thereof, that :

"Based on the foregoing information provided by the Town's planning staff and my experience in land use matters, it was apparent to me that submission of an application for a change of zone and to seek the necessary variances and/or exceptions that would be required for siting the proposed Commerce bank branch on the parcels in question would be fruitless. Accordingly, I so advised Joseph Colucci and, I believe, one other representative of Commerce."

In the affidavit of Joseph Colucci, identified in his affidavit as the Project Manager assigned to the site development of the parcels at Pat Drive and Montauk Highway for use by Commerce as a bank branch, said affidavit having been submitted by Defendant herein, Mr. Colucci states, under oath, at Paragraph 9 thereof, that:

"On or about July 30, 2003, Mr. Rettaliata informed me that the Town would not approve the proposed site plan. Upon receipt of that information, I so advised Commerce.".

Therefore, based upon information placed in evidence by Defendant, Defendant knew, within the Approval Period, that the Town of Islip would not look favorably upon its application at the location Defendant had entered into contract to purchase from Plaintiffs. No documentation has been submitted by Defendant demonstrating that it ever filed a formal application with the Town of Islip, either before or after receiving the communication of Mr. Rettaliata through Mr. Colucci. Once again Defendant had ample time to so inform Plaintiffs, now pursuant to § 20 of the Contracts of Sale with Plaintiffs, thereupon terminating said contracts and any further obligations to Plaintiffs, as well as rightfully demanding return of its down-payments, as per the contracts. Once again, Defendant has submitted no documentation to prove a notice was issued by them to Plaintiffs terminating the Contracts within the Approval Period and additional ten days, nor has it alleged such a termination in its submissions to the Court. Once again, Defendant had obligations and rights clearly set forth in the contract, and once again it failed to so inform Plaintiffs, and failed to exercise its right to terminate the contract. There is no triable issue of fact remaining as to Defendant's failure to terminate the contract and regain its downpayments within the Approval Period.

At § 13.04 the contracts state:

"If Purchaser shall default in the performance of its obligations under this contract to purchase the Premises, the sole remedy of Seller shall be to retain the Downpayment as liquidated damages for all loss, damage and expense suffered by Seller, including without limitation the loss of its bargain."

Plaintiffs submitted proof that, on August 17, 2004, well after the Approval Period had expired, Plaintiffs' Counsel informed Defendant that "time is of the essence" and the Sellers were ready, able and waiting to schedule closing of title. They also submitted proof that, thereafter, on September 8, 2004 Plaintiff's Counsel issued "Notice of Breach of Contract" to Defendant. Thereafter, On November 24, 2004, they commenced the within action. Defendant has, by its failure to exercise its rights to terminate this contract at every opportunity, forfeited the aforementioned downpayments to the Plaintiffs herein, and no triable issues of fact remain to be determined.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact [*4]from the case (Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 404 NE2d 718 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 165 NYS2d 498, 144 NE2d 387 [1957]).

For all the reasons stated herein above, it is, therefore,

ORDERED, that the application of Plaintiffs for an Order, pursuant to CPLR 3212, granting summary judgment in their favor, and further awarding $100,000.00 in liquidated damages to the Plaintiffs (divided as follows: $75,000.00 to Plaintiffs OPPISSO and $25,000.00 to Plaintiff SHETTY, representing the respective downpayments made by Defendant to the various Plaintiffs regarding real estate contracts of sale for separate parcels of real property owned by said Plaintiffs), is hereby granted in all respects, and should either or both of the downpayments have been held in interest bearing accounts, as per agreement between Purchaser and Sellers, then any and all such interest on the respective downpayment shall also be awarded to said Plaintiff(s).

Submit Judgment on ten (10) days notice.

Dated:Riverhead, New York

March 21, 2006

____________________________________

HON. JEFFREY ARLEN SPINNER, J.S.C.

TO: