Chan v Shew Foo Chin

Annotate this Case

Download PDF

Chan v Shew Foo Chin 2006 NY Slip Op 30669(U) October 13, 2006 Supreme Court, New York County Docket Number: 106692/2005 Judge: Walter B. Tolub Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STAT ¬ OF NEW YORK/- NEW YORK COUNTY . I PART .- Index Number: IO669212005 CHAN, MIRIAM 1 5 INDEX NO. vs CHIN, SHEW FOO MOTION DATE Sequence Number : 002 MOTION SCQ. NO. ob 5\21 u- SUMMARY JUDGMENT MOTION CAL. NO. I. 5 z 0 3 8o FE w CT c 3 Replying Affldavftr Cross-Motion: 15Yes @ No de&d 1 0a c m d m ( - L w m o ~ m ~ w deuslbk Upon the foregoing papers. it la ordered that thlr motion w b =A -0 OLL 'I Dated: Check one: a FINAL DISPOSITION Check If approprlate: 0 DO NOT POST 0 REFERENCE [* 2] n MIRIAM CHAN, PLATINUM QUEENS, LLC and 7 9 TOWER, LLC Index No. 106692/05 002 Mtn Smg. Plaintiffs, -against- SHEW FOO CHIN, SUSAN CHIN and RAYMOND W,M. CHIN a / k / a RAYMOND CHIN Defendants. By judgment this 'I Ocr23 ----__-_I-----------___L____________ WALTER B. TOLUB, J. : Ip * $p %bo 26 @ %$ +? motion, plaintiff Miriam Chan rno@&~+$or summary (CPLR 3 2 1 2 ) on h e r first two causes of action against d e f e n d a n t Shew Foo Chin, Plaintiff Chan additionally moves f o r an o r d e r dismissing t h e affirmative defenses of defendants Shew Foo Chin and Susan Chin. This somewhat complicated action arises in connection w i t h a failed sale o f real p r o p e r t y l o c a t e d at 79 Eldridge S t r e e t in Manhattan.' property. Defendant Shew Foo C h i n is the present owner of the Susan C h i n is the w i f e of Shew Foo C h i n , and Raymond W.M. Chin, a l s o known as Raymond Chin (no relation to M r . and Mrs. Chin), is the attorney who represented Shew Foo C h i n with respect to t h e subject property transaction. P l a i n t i f f s allege t h a t on o r a b o u t J u l y 24, 2 0 0 2 , ' July 31, T h i s is n o t the first c a s e b e f o r e this c o u r t i n v o l v i n g t h i s property, its p r e s e n t owners, and their a t t o r n e y (see, Y i n a Oi Y a m V. Shew roo C h i n ( N e w Y o r k C o u n t y , I n d e x No. 1 0 8 0 2 6 / 0 5 ) . [* 3] 2002, December 16, 2 0 0 2 and J u l y . 1 7 , 2003, p l a i n t i f f Miriam Chan, individually and as a managing member of (Platinum), e n t e r e d Platinum Queens, LLC into a s e r i e s of w r i t t e n agreements with d e f e n d a n t Shew Foo C h i n t o p u r c h a s e the subject property. Ms. Chan d e a l t w i t h Shew Foo Chin s agent and wife, d e f e n d a n t S u s a n Chin, and defendant Raymond Chin, a s Shew Foo Chin s attorney. The t o t a l purchase p r i c e of t h e p r o p e r t y is a l l e g e d to have initially been $350,000. The parties did not execute a formal c o n t r a c t of sale for the s u b j e c t p r o p e r t y . The initial purchase p r i c e of the p r o p e r t y , a s well as the i n i t i a l payment made b y plaintiffs, is t h e s u b j e c t of a l e t t e r dated J u l y , 24, 2002 from Miriam Chan to Shew Foo C h i n , Raymond chin, E s q . The letter, in pertinent part, care of reads follows: Confirming o u r agreement; enclosed p l e a s e f i n d a c h e c k made payable to Raymond Chin, E s q . As a t t o r n e y a s contract deposit f o r the purchase of 7 9 Eldridge S t r e e t , New York, New Yosk, Your attorney s h a l l d e p o s i t said check w h i c h is made on a c c o u n t of the purchase of t h e 7 9 Eldridge S t r e e t , New Y o r k , New York premises for a purchase p r i c e of $350,000.00. F u r t h e r , please be advised h a t [sic] I have also delivered a check i n the amount of $30,000 made p a y a b l e to you a3 an additional c o n t r a c t deposit for the purchase of t h e 7 9 E l d r i d g e Street premises, Please be f u r t h e r advised t h a t the c o n t r a c t deposits shall not be h e l d i n escrow and may b e u s e d by seller s [ s i c ] p r i o r to closing. Please forward to the undersigned the formal c o n t r a c t o f sale c o n t a i n i n g t h e f o l l o w i n g terms: 2 I as [* 4] Premises: Purchaser: 7 9 Eldridge Street, N e w York, New York, 1 0 0 0 2 Miriam Chan a s nominee for a n e n t i t y t o be formed a n d not individually Purchase P r i c e : P a i d on C o n t r a c t : $350,000.00 $150,000.00 Closing d a t e : p a i d d i r e c t l y to s e l l e r ) Sept. 17, 2 0 0 2 Condition o f Premises: ($30,000.00 t o be t o be delivered vacant and broom clean and free and clear of a l l violations and fines. insurable title without any Title: additional premium. ( N o t i c e of Motion, E x h i b i t I). It appears t h a t in f u r t h e r a n c e of this document, on J u l y 24, 2 0 0 2 t w o c h e c k s were issued by Platinum Queens, LLC and signed by Ms Chan. One check was written to "Raymond Chin, As Attorney" in t h e amount of $ 1 2 0 , 0 0 0 . The second check was written to "Susan Chin and Raymond Chin as Attorney" in the amount $30,000, of Both checks, which bear indicating t h a t they were f o r the p u r c h a s e of notations 7 9 Eldridge Street, were indorsed by Raymond C h i n and deposited (Notice of $80,000 by 7 9 T o w e r LLC and signed by Ms. Chan, to Susan Chin indorsed, this time b y Shew FOCI C h i n ( N o t i c e of Motion, Exhibit I), On J u l y 31, 2002, it appears t h a t defendants Shew Foo 3 [* 5] C h i n and Susan C h i n raised the purchase p r i c e of the p r o p e r t y by $700,000 to a new price of $1,050.000, This price i n c r e a s e , although unexplained, is r e f l e c t e d i n a l e t t e r from Ms. Chan to Shew F. Chin dated J u l y 31, 2 0 0 2 ( M o t i o n , Exhibit I) and f u r t h e r suggests that Ms. Chan signed c h e c k s t h a t were issued t o defendants for an additional $ 1 2 0 , 0 0 0 on May 24, 2003 a n d an additional $ 1 0 0 , 0 0 0 on J u l y 1 7 , 2 0 0 3 . 2 In t o t a l , b y J u l y 1 7 , 2003 plaintiffs claim to h a v e tendered defendants nearly $ 4 5 0 , 0 0 0 towards the purchase o f the s u b j e c t p r o p e r t y , was which never Additionally, Tower LLC 79 commenced a n action to quiet t i t l e i n 2 0 0 3 . ' Plaintiff commenced the i n s t a n t a c t i o n i n May, Comprised of eight causes of action, plaintiff' 9 2005. complaint seeks s p e c i f i c performance of the c o n t r a c t (first and second causes of action), a declaratory judgment (third cause of action) and asserts causes of action f o r b r e a c h of c o n t r a c t and monies had a n d received ( f o u r t h t h r o u g h e i g h t h c a u s e s of 'Neither of t h e s e cancelled checks were submitted by the parties, 3 T h i s court would be remiss if it did not also indicate that it appears that defendants attempted t o sell t h e same parcel of This action is a l s o p r e s e n t l y p r o p e r t y in 2 0 0 5 for $500,000. before this court ( s e e , Yincr-Oi Yapg v , Shew Foo Ch in, New Y o r k County Index No. 1 0 8 0 2 6 f 2 0 0 5 ) C- mn, Lee & Chena, an d Shew F 00 Ch in v . Matthew Metz. R a mond F. C , , V i c t o r Chencr and S imon T e e (New York County, Index No. 1 2 0 6 6 6 / 2 0 0 3 ) 4 [* 6] action). P l a i n t i f f Miriam Chan presently moves f o r summary judgment on t h e first two causes o f action in the complaint f o r s p e c i f i c performance. A motion f o r summary judgment limits t h e role of this c o u r t to finding issues, and n o t resolving them ($illman v . Twentieth Centu r v F Film C Q ~ , 3 NY2d 3 9 5 [ 1 9 5 7 ] m . v, N ew York Un iversitv Med i c a l Cent e r , 119851. u See also, Barr, NY2d 64 Wjneqrad 851, 853 Altman, Lipshie and Gerstman; k C i v i l P r a c t i c e Befare Trial, , 537:91-92). ; [James Publishing 20051 Therefore, in o r d e r t o succeed, the moving p a r t y must demonstrate entitlement to summary judgment a s a matter o f law (see, [1980])- Zuckerma n v. C i t v of New Y ork, 4 9 N.Y.2d 557 If the opposing party produces e v i d e n t i a r y p r o o f in admissible form t h a t is sufficient to establish t h e existence of m a t e r i a l issues of fact requiring judgment w i l l be d e n i e d (L). trial, then summary A s a preliminary m a t t e r , t h i s c o u r t rejects t h a argument advanced by defendants Shew Foo C h i n and Susan C h i n t h a t claims Ma. Chan l a c k s standing t o bring this a c t i o n . Chan, signed a document p r o p e r t y as nominee individually Ms. claiming to purchase t h e s u b j e c t for an e n t i t y to be formed and not ( N o t i c e of Motion, Exhibit I . This n o t o n l y I, I h a s been h e l d to be an acceptable business p r a c t i c e , b u t also a l l o w s Ms. Chan to bring this action (see, W 5 U e Manaaantenf, i [* 7] Go., Ipc, V. ReLCher o i l Cow of ew Yar k, 159 A.D.2d 3 3 9 [lat Dept. 19901 (an a g e n t may bring an a c t i o n upon a contract ( 1 ) when t h e c o n t r a c t was made i n t h e agent s name; (2) when the agent has p l e d g e d his p e r s o n a l credit, whether the principal was disclosed or undisclosed; o r ( 3 ) when the d e f e n d a n t h a s acknowledged t h a t the plaintiff possesses a g e n e r a l a g e n c y authorizing him to a c t in a l l matters (a 3 4 0 ) . at See also R i l e v v , M ran, 82 Misc.2d 702 [Sup. Ct. NY C o . 19741). a As a secondary matter, this court declines t o address the opposition papers submitted by defendant Raymond Chin, and denies the r e l i e f sought therein. Not only did Mr. C h i n n o t m a k e an appropriate cross-motion for the r e l i e f s o u g h t , b u t his opposition papers are duplicative of h i s e a r l i e r motion to dismiss. S i n c e Mr. Chin s motion t o dismiss was already addressed and subsequently denied, this c o u r t sees no reason t o revisit these arguments. The remaining o b j e c t i o n s t o the instant motion made by d e f e n d a n t s Shew Foo C h i n and Susan C h i n are made grounds: on two (1) defendants have been u n a b l e to complete enough discovery so a s to p r o p e r l y defend t h i s pre-note of issue motion f o r summary j u d g m e n t and (2) no contract exists. Denial of a summary judgment motion is only appropriate where it is demonstrated b y the non-moving party s affidavit that f u r t h e r discovery would l i k e l y produce f a c t s necessary to 6 1 [* 8] preclude an award summary of judgment (Denkernoh v. Pavenuort, 130 A D 2 d 8 6 0 [3rd Dept. 1 9 9 7 1 ) and where the nonmoving p a r t y demonstrates prior good f a i t h attempts to a c q u i r e the outstanding discovery (Guarino v . Mohawk Contal nexs C O . , ~ P C , , 5 9 N Y 2 d 7 5 3 [1983} o r that n o meaningful discovery had been made prior to the bringing of t h e summary judgment motion ( s e e , w s k v v. 3 t a t e - W d e Ipsuranc e i Cowany, 30 AD2d 1 [Znd Dept. 19681). The problem however, is t h a t while the a f f i d a v i t i n opposition submitted by counsel f o r defendants Shew Foo Chin and Susan C h i n i n d i c a t e s t h e need f o r discovery, it does not demonstrate t h a t the discovery would result in t h e production o f e v i d e n c e necessary to d e f e a t a motion f o r summary judgment, especially, since a n y evidence defeating plaintiffs claim that a c o n t r a c t exists f o r the sale of the s u b j e c t p r o p e r t y would most l i k e l y already be in d e f e n d a n t s possession. Nonetheless, summary judgment on t h e first two causes of a c t i o n are d e n i e d a s t o both parties as premature w i t h l e a v e to renew upon the conclusion of discovery. While n e i t h e r t h e absence of a boilerplate c o n t r a c t or an agreement reduced t o a single writing concerning t h e sale of p r o p e r t y indicate e i t h e r that t h e S t a t u t e of Frauds is n o t satisfied o r t h a t a v a l i d contract does n o t exist ( s e e , General Obligations Law 5703; sch v u 1 1 FON CQXW. , 2 AD3d 101 [l Dept. 2 0 0 2 1 ) , 7 the [* 9] submissions of answers. the generate parties more questions t h a n Accordingly, it is ORDERED that the motion made by p l a i n t i f f Miriam Chan for summary judgment on the f i r s t two causes of action is d e n i e d with l e a v e to renew upon t h e conclusion o f discovery. Counsel for the parties are directed to appear for a Compliance Conference in this matter i n IA Part 15, Room 335, 60 Centre S t r e e t , New York, N e w Y o r k a t 11:OO a.m. on December 15, 2 0 0 6 . This memorandum opinion constitutes the decision and order o f the C o u r t . Dated: HON. WALTE 8 4 B. TOLUB, J . S . C .

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.