Anah v Dudek

[*1] Anah v Dudek 2009 NY Slip Op 52022(U) [25 Misc 3d 1210(A)] Decided on October 1, 2009 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2009
Supreme Court, Queens County

Amir Anah, Plaintiff

against

John T. Dudek, et al., Defendant.



27216/07



For Plaintiff:

Robert Levy, Esq., 148-03 Hillside Ave., Jamaica, NY 11435

For Defendants:

Anzalone & Leschins, by Preston Leschins, Esq., 888 Seventh Avenue, NY, NY 10106

Charles J. Markey, J.

On December 6, 2006, plaintiff, as buyer, and defendants, as sellers, entered into a contract of sale for the real property located at 247-06 139th Avenue, Rosedale, New York (the Contract). The Contract provided for a down payment on the purchase price, with the balance due at a closing date of March 15, 2007. Plaintiff deposited the $86,000 in escrow with defendants' attorney, Mark Steven Soroka (Soroka).

Plaintiff alleges that he was ready, willing, and able to close on March 15, 2007, and that defendants breached the Contract by failing to close on that date and for 60 days thereafter. As relief, plaintiff demands return of his down payment, reimbursement for the cost of a title search, and cancellation of the Contract. Issue was joined by service of defendants' answer, asserting affirmative defenses, and interposing a counterclaim for breach of contract. As relief, defendants demand the down payment, and the difference between the contract price and the market price at the time of plaintiff's breach. Plaintiff served an reply to the counterclaim, asserting, as an affirmative defense, that defendants are limited to the down payment as liquidated damages. Defendants have moved, pursuant to CPLR 3212, for summary judgment on their counterclaim and dismissing plaintiff's complaint.

In support of the motion, defendants submitted a series of letters and letter agreements between the parties. By letter dated July 12, 2007, Soroka confirmed with plaintiff's counsel that the closing would take place on July 16, 2007. The closing did not take place on July 16, 2007.

By letter agreement dated August 14, 2007, plaintiff's counsel and Soroka agreed, as relevant to this motion, that the closing would take place on or before October 1, 2007, with "time of the [*2]essence," and that plaintiff would deposit an additional $15,000 in escrow, which plaintiff did, bringing the total deposit to $101,000 (the total deposit). By letter dated September 24, 2007, Soroka informed plaintiff's counsel that defendants had been ready, willing, and able to close by October 1, 2007, that defendants were not disposed to any further delays on behalf of plaintiff, that defendants were setting October 1, 2007, at 2:00 P.M., as the "time of the essence" date and time to close, and that plaintiff would forfeit the total deposit if he failed to close as scheduled. The closing did not take place on October 1, 2007.

By letter agreement dated October 2, 2007, plaintiff's counsel and Soroka agreed, as relevant to this motion, to a new "time of the essence" closing date of on or before October 31, 2007. By letter dated October 29, 2007, Soroka informed plaintiff's counsel that defendants had been ready, willing, and able to close by October 31, 2007, that defendants were not disposed to any further delays on behalf of plaintiff, that defendants were setting October 31, 2007, at 3:00 P.M., as the "time of the essence" date and time to close, and that plaintiff would forfeit the total deposit if he failed to close as scheduled. The closing did not take place on October 31, 2007. Plaintiff commenced this action on November 1, 2007.

Defendants demonstrated their prima facie entitlement to judgment as a matter of law on the issue of liability in the complaint and counterclaim (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). While the Contract did not include a provision that time was of the essence, the letter agreement dated October 2, 2007, and the letter dated October 29, 2007, sent by defendants to plaintiff, "provided unequivocal notice that the closing date was [October 31, 2007], where time was of the essence and that [plaintiff's] failure to comply would be considered a default" (Somma v Richardt, 52 AD3d 813, 814 [2008]). Plaintiff's "refusal to attend the closing constituted an anticipatory breach" of the Contract (Zullo v Varley, 57 AD3d 536, 537 [2008]), and defendants may keep the total deposit (see Maxton Bldrs. v Lo Galbo, 68 NY2d 373, 378 [1986]; Hegner v Reed, 2 AD3d 683, 684-685 [2003]).

In opposition, plaintiff failed to create an issue of fact. His counsel argues that plaintiff was reluctant to close in the fall or winter due to seasonal factors affecting construction and resale, that "the house was illegally altered by building extensions to the original structure without a certificate of occupancy," and that plaintiff "cannot obtain the certificate of occupancy for the new construction that he was going to build without clearing the problem of the house that presently exists." None of these assertions, however, are supported by evidence from someone with personal knowledge, and thus cannot create a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

As to the appropriate remedy for plaintiff's breach, the Contract provides, "[i]f Purchaser wilfully defaults hereunder, Seller's sole remedy shall be to receive and retain the Downpayment as liquidated damages..." Defendants' remedy for plaintiff's breach is thus limited to retention of the total deposit currently held in escrow.

Accordingly, the motion is granted to the extent of dismissing the complaint, and awarding defendants summary judgment on their counterclaim solely to the extent of awarding them the total deposit. The motion is in all other respects denied.

Settle order.

J.S.C.