Clear Blue Water, LLC v Winston
Annotate this CaseDecided on March 30, 2009
Supreme Court, Suffolk County
Clear Blue Water, LLC, Plaintiff,
against
John Winston, Defendant.
18797/2008
PLAINTIFF'S ATTORNEY:
GEORGE O. GULDI, ESQ.
100 MILL ROAD
WESTHAMPTON BEACH, NEW YORK 11978
631-288-3737
PLAINTIFF'S FORMER ATTORNEY:
DUSTIN J. DENTE, ESQ.
ONE CROSS ISLAND PLAZA, SUITE 203C
ROSEDALE, NEW YORK 11422
718-527-7770
DEFENDANT'S ATTORNEY:
MIKEL J. HOFFMAN, P.C.
193 EAST MAIN STREET
BABYLON, NEW YORK 11702
631-661-2121
Joseph Farneti, J.
ORDERED that this motion by defendant, for an Order, pursuant to CPLR 6514 and 6516, vacating and cancelling a notice of pendency filed on May 19, 2008, affecting the real property commonly known as 60 George Street, Babylon, New York (the "property"), owned by defendant, is hereby GRANTED for the reasons set forth hereinafter; and it is further
ORDERED that the branch of defendant's motion for an Order, pursuant to CPLR 6514 (c), awarding defendant costs and expenses occasioned by the filing of the notice of pendency, and pursuant to 22 NYCRR § 130-1.1, sanctioning plaintiff and plaintiff's counsel for frivolous conduct in that the instant action is without merit in law or in fact and is undertaken primarily to harass or maliciously injure defendant, is hereby GRANTED to the extent provided hereinafter.
The Court notes that plaintiff has failed to interpose opposition to the application at bar.
On or about June 28, 2007, Melissa Lanzilotta, as nominee for Ultimate Title and Abstract, LLC ("Ultimate"), plaintiff's predecessor-in-interest, entered into a contract to purchase the subject real property for the purchase price of $800,000.00 ("contract"). At the time of the execution of the contract, Ultimate tendered a $30,000.00 down payment. For reasons that were contested, the closing never occurred. Thereafter, on or about November 2, 2007, Ultimate commenced an action against the defendant herein in Supreme Court, Suffolk County, for specific performance of the contract. By Order dated May 13, 2008 (Whelan, J.), the Court dismissed Ultimate's complaint and cancelled a notice of pendency that had been filed against the property by Ultimate. The Court found that Ultimate unilaterally materially breached the contract by failing to appear for the scheduled closing after it had been rescheduled. As such, the Court held that defendant was entitled to retain the contract down payment as liquidated damages. This Court notes that by Order dated August 25, 2008 (Whelan, J.), the Court denied a motion by Ultimate to renew and/or reargue the prior motion to dismiss Ultimate's complaint. In addition, the Court notes that on or about June 27, 2008, Ultimate filed a Notice of Appeal of the Order of August 25, 2008; however, the Court is not aware of the status of that appeal.
Defendant informs the Court that on May 19, 2008, six days after dismissal of the prior action, the plaintiff herein, CLEAR BLUE WATER, LLC ("Clear Blue"), filed another notice of pendency against the property and commenced the instant action against defendant seeking specific performance of the same contract. A review of both complaints reveals that they assert the same four causes of action, and the allegations therein are virtually identical. The only notable exception is that Clear Blue is substituted as plaintiff for Ultimate.
Defendant now moves to vacate the notice of pendency on the following grounds: pursuant to CPLR 6514 (a), that Clear Blue failed to serve a summons within the thirty (30) day time limit set forth in CPLR 6512; pursuant to CPLR 6514 (b), that Clear Blue has not commenced or prosecuted this action in good faith; and pursuant to CPLR 6516 (c), that Clear Blue has wrongfully filed successive notices of pendency. In addition, defendant seeks an award [*2]of costs and expenses, pursuant to CPLR 6514 (c), occasioned by the filing of the notice of pendency, and an award of costs and financial sanctions against Clear Blue and Clear Blue's counsel, pursuant to 22 NYCRR § 130-1.1, for frivolous conduct in commencing and maintaining the instant action. As discussed hereinabove, Clear Blue has not filed opposition to the instant application.
A notice of pendency is an "extraordinary privilege" which demands "strict compliance" with applicable statutory requirements (Israelson v Bradley, 308 NY 511 [1955]; see Old World Custom Homes, Inc. v. Crane, 33 AD3d 600 [2006]; Matter of Sakow, 97 NY2d 436 [2002]). Defendant asserts, and Clear Blue does not dispute, that Clear Blue never served the within summons upon defendant. As such, the Court finds that Clear Blue is in violation of CPLR 6514 (a) by failing to serve the summons with the thirty (30) day time limit set forth in CPLR 6512. Thus, the notice of pendency must be cancelled (see CPLR 6514 [a]; Mastronardi v. Countywide Constr. Corp., 2 AD3d 416 [2003]; Gargano v Rubin, 130 AD2d 709 [1987]), and the Court need not reach defendant's remaining arguments for cancellation of the notice of pendency.
Accordingly, that branch of the instant motion to vacate and cancel the notice of pendency filed on May 19, 2008, affecting the real property commonly known as 60 George Street, Babylon, New York, is GRANTED, pursuant to CPLR 6514 (a). The Clerk of the County of Suffolk is hereby directed to mark upon the margin of her records the notation "vacated and cancelled" with a reference to this Order.
As discussed, defendant also seeks an award of costs and expenses pursuant to CPLR 6514 (c), and an award of costs and financial sanctions against Clear Blue and Clear Blue's counsel, pursuant to 22 NYCRR § 130-1.1, for frivolous conduct in commencing and maintaining the instant action. Specifically, defendant seeks an award of costs in the amount of $210.00, and counsel fees in the amount of $4,800.00. Defendant argues that the instant action is barred by the doctrine of res judicata following the dismissal of Ultimate's complaint in the prior action, the cancellation of the notice of pendency, and the determination that Ultimate materially breached the contract. Counsel for defendant had requested that Clear Blue voluntarily discontinue this action, but by correspondence dated July 22, 2008, Clear Blue's former counsel refused.
In New York, res judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if (i) there is a judgment on the merits rendered by a court of competent jurisdiction; and (ii) the party against whom the doctrine is invoked was a party to the previous action or in privity with a party who was (Matter of People of the State of New York, by Eliot Spitzer, as Attorney Gen. v Applied Card Sys., Inc., 11 NY3d 105 [2008]; Sainval v City of New York, 57 AD3d 508 [2008]). Generally, to establish privity the connection between the parties must be such that the interests of the nonparty can be said to have been represented in the prior proceeding (Matter of People of the State of New York, by Eliot Spitzer, as Attorney Gen. v Applied Card Sys., Inc., 11 NY3d 105, supra). Here, the Court [*3]finds that both actions concern the same contract for the sale of real property; a determination on the merits was made by a court of competent jurisdiction that Ultimate materially breached the contract, that defendant was entitled to retain the contract down payment, and that the notice of pendency should be cancelled; and Clear Blue, as assignee of the subject contract, is clearly in privity with Ultimate for res judicata purposes. Accordingly, it appears that the doctrine of res judicata acts as a bar to the instant action (see generally Matter of Josey v Goord, 9 NY3d 386 [2007]).
In view of the foregoing, that branch of defendant's motion for an Order, pursuant to CPLR 6514 (c), awarding defendant costs and expenses occasioned by the filing and cancellation of the notice of pendency, and pursuant to 22 NYCRR § 130-1.1, sanctioning Clear Blue and Clear Blue's counsel for frivolous conduct in the form of costs, expenses and attorney's fees, is set down for a hearing on May 21, 2009, at 10:30 a.m., in Part 37, Arthur Cromarty Court Complex, 210 Center Drive, Riverhead. Clear Blue's former attorney, DUSTIN J. DENTE, ESQ., is directed to appear at the hearing, as Mr. Dente filed the subject notice of pendency and commenced the instant action on behalf of Clear Blue.
The foregoing constitutes the decision and Order of the Court.
Dated: March 30, 2009
HON. JOSEPH FARNETI
Acting Justice Supreme Court
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