Fallati v Mackey
Annotate this CaseDecided on January 25, 2006
Supreme Court, Albany County
Paul Fallati, Plaintiff,
against
Mary T. Mackey, Defendant.
783-05
APPEARANCES:
Nia C. Cholakis, Esq.
Attorney for Plaintiff
7 Coyote Lane
Troy, New York 12180
Daniel J. Centi, Esq.
Feeney, Centi and Mackey
Attorneys for Defendant
116 Great Oaks Boulevard
Albany, NY 12203
Cathryn M. Doyle, J.
Plaintiff moves for summary judgment, pursuant to CPLR § 3212, against the
defendant: (1) dismissing the affirmative defenses of defendant as set forth in her answer, (2)
dismissing the answer of the defendant in its entirety, and granting summary judgment in favor of
plaintiff for specific performance pursuant to the terms of a contract for sale of real estate, (3) for
an award of costs to plaintiff in the form of reimbursement for expenses incurred and reasonable
attorneys fees in this matter, (4) for an order staying all discovery in this action pending the
determination of this motion, (5) for an order disqualifying defendant's counsel on the ground of
a conflict of interest, and (6) for an order restraining the defendant from selling the property in
question pending the outcome of this lawsuit. The defendant opposes the motion in its entirety
and cross moves for summary judgment dismissing the complaint and for an order canceling the
notice of pendency.
BACKGROUND
On October 1, 2004, plaintiff entered into a written agreement with defendant to purchase a parcel of defendant's real property located at 6483 Vosburgh Road, Town of Guilderland, Albany County (hereinafter the disputed property), for the stipulated sum of $121,000. The written agreement entitled "Contract For Purchase And Sale of Real Estate" contains 24 provisions which include, but are not limited to, mortgage contingency, mortgage expense and recording fees, other terms, title and survey, conditions affecting title, deed, right of inspection and access, transfer of title/possession, time period of offer, attorney approval clause, radon contingency, septic system contingency and underground heating oil storage tank contingency.
All contingencies were either met or waived by the plaintiff and, by letter dated December 14, 2004, plaintiff informed the defendant that he was "ready, willing and able to close" the transaction. Defendant failed to respond to plaintiff's request for a closing date and by letter dated December 22, 2004, plaintiff informed defendant that "time is of the essence," stating that the transaction must close within thirty (30) days from the date of the letter. Having heard nothing from the defendant or her counsel, plaintiff informed defendant, by letter dated January 19, 2005 that the 30-day period to close the transaction would expire on January 21, 2005.
When the closing did not occur by that date, plaintiff commenced this action for specific
performance of the contract. Following joinder of issue and some discovery, plaintiff moves for
summary judgment in his favor and, in turn, the defendant cross moves for summary judgment in
her favor.
DISCUSSION
As a defense to performance under the contract, the defendant contends that she was induced into signing the contract based upon the plaintiff's fraudulent conduct. It is undisputed that after entering into the contract, plaintiff commenced a subdivision proceeding in the Town of Guilderland. According to the defendant, when she entered into the contract for sale on October 1, 2004, plaintiff failed to negotiate the right to seek subdivision approval. The defendant avers that if the plaintiff had made such a disclosure then she would have had the opportunity to sit down with her sister Jane Mahar, who is presently her attorney in fact, and counsel to determine whether the contract should have been signed at all, to discuss the risks involved, and if she decided to proceed, to determine the reasonable value for taking the risks conceivably involved with such a provision in the contract. [*2]
Jane Mahar, who owns a home on the other side of Vosburgh Road where the disputed property is located, states that she received notice from the Town of Guilderland in December 2004 stating that the plaintiff submitted an application to subdivide the disputed property. Mahar claims that the defendant never authorized the plaintiff's application for subdivision approval and, therefore, the defendant was fraudulently induced into signing the contract. Mahar claims that she and the defendant found out about plaintiff's subdivision application only because she owned land across the street and was involved in a subdivision process for her property at the same time. Mahar claims that, immediately after finding out about plaintiff's subdivision application, she requested that all work be stopped on the transfer of title of the disputed property based upon the aforementioned conduct of the plaintiff.
Summary judgment is appropriate where there is no question of fact requiring resolution by a trier of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Van Alstine v Padula, 228 AD2d 909 [3rd Dept. 1996], appeal dismissed 89 NY2d 858 [1996]). In order to succeed on a motion for summary judgment, the movant "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, supra). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which requires a trial of the action (see Alvarez v Prospect Hosp., supra).
In support of his motion for summary judgment, plaintiff claims that all of the contingencies contained in the contract were either met or waived by him and did not have any effect on the parties' obligation to complete the contact. The defendant does not dispute this allegation. Plaintiff further contends that the defendant was fully aware that he was seeking Town approval to subdivide the property and asserts that he acted in good faith and was "ready, willing and able to perform" the contract. According to plaintiff, he met with Mahar on several occasions prior to, and following, the execution of the contract. Prior to execution, Mahar obtained three market analyses from three real estate brokers and presented them to the plaintiff, who is a real estate broker, with an asking price. Plaintiff agreed to the asking price of $121,000. Plaintiff asserts that on two occasions he was accompanied by his business associate, Steve Luciano, who went with him to meet Mahar and her husband. Plaintiff contends that during the meetings, Mahar gave him permission to seek subdivision approval and offered to have her husband walk the land with him to locate the boundaries.
Plaintiff submitted an affidavit from Steve Luciano supporting his assertions and in further support of his motion for summary judgment. Luciano states that on two occasions in October 2004, Jane Mahar gave plaintiff permission to seek subdivision approval and offered to have her husband walk the land with plaintiff. Based on the foregoing, the Court finds that plaintiff has established his entitlement to judgment as a matter of law and shifted the burden to the defendant to establish the existence of material issues of fact which requires a trial of the action (see Alvarez v Prospect Hosp., supra).
In opposition to plaintiff's motion and in support of her cross motion, defendant states that she breached the contract because plaintiff failed to disclose and/or negotiate the right to seek subdivision approval when the parties entered into the contract for sale. As stated above, the defendant asserts that plaintiff denied her the opportunity to sit down with her sister and [*3]counsel, and determine if she should enter into the contract and to determine the reasonable value for taking the risks involved with such a provision in the contract. Defendant states, for example, that she would have been concerned that plaintiff would later try to avoid the contract if he could not obtain the subdivision approval. Defendant further states that she would have been concerned that plaintiff's application for subdivision approval might have adversely affected Mahar's subdivision application submitted to the Town for Mahar's property located across the street.
In further opposition to plaintiff's motion and in support of defendant's cross motion, the defendant submits an affidavit from Jane Mahar. Mahar admits that she was involved in her own subdivision process at the time defendant entered into the contract and states that when she discovered that the plaintiff was seeking subdivision approval from the Town of Guilderland, she immediately contacted defendant's attorney Craig Crist, Esq. and informed him that the defendant wanted all work stopped on the transfer of title which would not take place because of plaintiff's conduct. The defendant later discharged Crist and hired Daniel Centi, Esq. to represent her in this matter.
The defendant did not submit anything further in opposition to plaintiff's motion or in support of her motion. Based on the foregoing, the Court finds that the defendant failed to establish the existence of material issues of fact sufficient to defeat plaintiff's motion for summary judgment. (see Alvarez v Prospect Hosp., supra).
In this case, the plaintiff is simply seeking to purchase the property in accordance with the terms of a valid, binding and enforceable contract. Under the terms of the contract, plaintiff's success or failure in subdividing the property was at his own risk. Plaintiff agreed to purchase the property for $121,000 regardless of his ability to obtain subdivision approval from the Town. In the event that approval was not obtained, the plaintiff was still obligated to purchase the property at the agreed upon price (see Dyckman v Orear, 260 AD2d 848, 849 [1999]). .
The Court rejects any allegation by the defendant that the plaintiff failed to disclose that he is
a real estate broker. Provision 19 of the contract states the following:
"Purchaser and seller agree that no broker brought about the sale. However, the
Seller hereby acknowledges and confirms that the Purchaser has disclosed to her that he is a
licensed real estate broker in the State of New York. The Seller further acknowledges and
confirms that the purchase price for the premises is a fair representation of the fair market value
of the premises, as determined by the Seller."
Accordingly, the
defendant has failed to support her allegation that the plaintiff acted in bad faith and, therefore,
plaintiff's motion for summary judgment for specific performance pursuant to the terms of the
contract for sale is granted.
Plaintiff's motion to disqualify defense counsel is denied. The Court fails to see how defense counsel's alleged "personal relationship" with the Town of Guilderland is a conflict of interest to his representation of his client. Plaintiff's remaining contentions have been examined by the Court and are without merit. Accordingly, it is
ORDERED that plaintiff's motion is granted insofar as plaintiff is awarded summary judgment for specific performance pursuant to the terms of a contract for sale of real estate; and it is further [*4]
ORDERED that defendant's cross motion is
denied in its entirety.
Based on the foregoing decision and order, the defendant's motion to compel
discovery from the plaintiff is deemed moot. All papers, including this decision and order, are
being returned to the plaintiff. The signing of this decision and order shall not constitute entry or
filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section
relating to filing, entry and notice of entry.
This constitutes both the decision and order of the Court.
IT IS SO ORDERED.
DATED:ALBANY, NEW YORK
JANUARY 25, 2006
____________________________
Hon. Cathryn M. Doyle, Acting JSC
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