Bonner v Guerrieri

[*1] Bonner v Guerrieri 2009 NY Slip Op 52666(U) [26 Misc 3d 1205(A)] Decided on December 31, 2009 Supreme Court, New York County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 29, 2010; it will not be published in the printed Official Reports.

Decided on December 31, 2009
Supreme Court, New York County

David Bonner, AS EXECUTOR OF THE ESTATE OF MARION U. MOLLOY, DECEASED, Plaintiff,

against

Dexter Guerrieri, JANE ORDWAY, REGISTER OF THE CITY OF NEW YORK and THE CITY OF NEW YORK, Defendants.



105348/2005



For the Plaintiff:

R.B. Schwartz & Associates, P.C.

By: Richard B. Schwartz, Esq.

1565 Franklin Avenue

Mineola, NY 11501

(917) 597-8639

For Defendants Guerrieri and Ordway:

Jaffe, Ross & Light, LLP

By: Burton R. Ross, Esq.

880 Third Avenue

New York, NY 10022

(212) 751-1700

Paul G. Feinman, J.

Defendants Dexter Guerrieri and Jane Ordway ("defendants") move for summary judgment in their favor both on plaintiff's complaint and their counterclaim for specific performance. Plaintiff cross-moves for summary judgment seeking a declaration that the agreement at issue is null and void. For the reasons set forth below, defendants' motion for summary judgment is granted; plaintiff's cross-motion for summary judgment is denied.

Background

From 1918 until her death in 2007, Marion Molloy, plaintiff's decedent, resided at 338 West 15th Street, New York County (Defs.' Aff. in Supp., Exs., A, I). On February 14, 1981, Molloy, the premises' owner, and defendants entered into a single-page written agreement regarding the sale of the premises, the characterization of which is now at issue (Defs.' Aff. in Supp., Ex., G). Paragraph one of the agreement states, in pertinent part, that Molloy "agree[d] to sell [her] house, 338 West 15th Street [to defendants] for the sum of $185,000.000" as an "all cash payment," and in consideration thereof, defendants tendered $500.00 to Molloy at the time of execution (Defs.' Aff. in Supp., Exs., C, D). This matter's central issue arises from paragraph [*2]two of the agreement, which states, "It is understood and agreed that the sale will take place only upon my vacating the premises or finding a suitable apartment at Manhattan Plaza or elsewhere for my occupancy." It is undisputed that Molloy and defendants signed two copies of the document (Defs.' Mot., Agreed Stmt. of Facts ¶ 8).

According to defendant Guerrieri, he later took the document to his attorney, Ralph Pliskin, "and asked him to do what was legally necessary to protect [the defendants'] interest and record the [document]" (Defs.' Aff. in Supp., Guerrieri Aff. ¶ 31). Apparently, outside of the presence of the parties, Pliskin annexed two additional pages to the document, "a back and acknowledgment" (Aff. in Supp. of Cross-mot., Ex., A ¶ 12). The first page is labeled "OPTION TO PURCHASE" followed by the premises' address (Defs.' Aff. in Supp., Ex. G). The second page purports to serve as an acknowledgment to the parties' signatures and is notarized by Pliskin (Defs.' Aff. in Supp., Ex. G). The original single-page agreement and the two annexed pages prepared by Pliskin were filed and recorded in the City Register as a single document in July 1981 (Aff. in Supp. of Cross-mot., Ex., A ¶ 13).

In April 2005, Molloy sought to clear title to the property and commenced this action by summons and complaint seeking, among other things, vacatur and expungement of the recorded document (Defs.' Aff. in Supp., Ex. A). Defendants answered and counterclaimed for specific performance (Defs.' Aff. in Supp., Ex., B). Upon defendants' motion to dismiss, Supreme Court (Kapnick, J.) held that the document was "improperly executed and not in recordable form" under RPL § 298 "since there was no subscribing witness to Ms. Molloy's signature" and, accordingly, the document was vacated and expunged from the records of the Register of the City of New York (Defs.' Aff. in Supp., Ex. I, at 3, 10).[FN1] Defendants now move for summary judgment seeking: (1) dismissal of the complaint; and (2) judgment on their counterclaim declaring that the document is a valid and enforceable contract and, accordingly, compelling plaintiff to convey the premises (Defs.' Mot.; Defs.' Aff. in Supp.). Plaintiff cross-moves for summary judgement seeking a declaration that the document is null and void (Aff. in Supp. of Cross-mot., Ex., A ¶ 13).

Analysis

The proponent of a motion for summary judgment bears the initial burden of establishing entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]) by offering credible evidence demonstrating the absence of triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden of raising a triable question of fact then shifts to the opponent (see Torkel v NYU Hosps. Ctr., 63 AD3d 587, 592 [1st Dept 2009]) and evidence is viewed in the light most favorable to that party (see Brown v Muniz, 61 AD3d 526, 531 [1st Dept 2009]).

To establish entitlement to judgment as a matter of law on the their counterclaim for specific performance, defendants must demonstrate that no triable issue of fact exists as to the document's enforceability as a contract for the conveyance of real property. To do so, defendants must show that the alleged contract: (1) was in writing; (2) was signed by plaintiff who is the party to be charged; (3) contained the essential terms for a contract for the conveyance of land [*3]including (a) the parties' identities, (b) a sufficient description of the premises, (c) an expression of consideration, (d) the purchase price and manner of financing, and (e) the closing date; and (4) that conditions precedent to the alleged contract were satisfied (see General Obligations Law § 5-703 [2]; Nesbitt v Penalver, 40 AD3d 596, 598 [2d Dept 2007]; Pentony v Saxe, 2 AD3d 1076, 1076 [3d Dept 2003]).

Here, it is undisputed that the agreement (1) was memorialized, (2) was signed by Molloy, (3) (a) clearly identified Molloy as the seller and defendants as the purchasers, (b) described the property by reciting the address, (c) expressed that $500 consideration was payed upon execution as evidenced by defendants' check (Defs.' Aff. in Supp., Ex. D), and (d) stated the purchase price as $185,000.00 to "be [an] all cash payment" (Defs.' Aff. in Supp., Ex. C; Defs.' Mot., Agreed Stmt. of Facts ¶ 8). Plaintiff essentially argues that the document is not enforceable because it does not contain an essential term—the closing date (Memo of Law in Opp., at 5-6). This argument is unavailing. While this court recognizes that "[n]o contract for the sale of real property can be created when a material element of the contemplated bargain has been left for further negotiations" (Generas v Hotel des Artistes, 117 AD2d 563, 566 [1st Dept 1986], lv denied 68 NY2d 606 [1986]), "the omission of a [single] term[,] standing alone, may not [necessarily be] fatal" (O'Brien v West, 199 AD2d 369, 371 [2d Dept 1993]; see Nesbitt v Penalver, 40 AD3d at 598). Specifically, a contract for the sale of property need not set a particular date certain for the closing date; "reasonable certainty" suffices (Restatement [First] of Contracts § 207; see Ward v Hasbrouck, 169 NY 407 [1902]; Allegro v Youells, 2009 NY Slip Op 07896, *1 [Nov. 5, 2009]; Allied Sheet Metal Works v Kerby Saunders, Inc., 206 AD2d 166, 169 [1st Dept 1994]; Pfeil v Cappiello, 29 AD3d 1187, 1188 [3d Dept 2006]) and, in the absence of such a term, the law will impute a reasonable time for closing (see N. E. D. Holding Co., Inc. v McKinley, 246 NY 40, 45 [1927]).

Here, the very face of the document reflects an understanding that closing would occur upon the occurrence of the condition precedent. Paragraph two states, "It is understood and agreed that the sale will take place only upon my vacating the premises or finding a suitable apartment at Manhattan Plaza or elsewhere for my occupancy" (Defs. Aff. in Supp., Ex. C). It is fair to say that a closing date was set, with reasonable certainty, upon the occurrence of that condition (see Behrends v White Acre Acquisitions, LLC, 54 AD3d 700, 701 [2d Dept 2008]). Thus, because "[t]he agreement identified the parties, described the subject property, stated the time and terms of payment, established the closing date, and was subscribed by the part[y] to be charged" (Sabetfard v Djavaheri Realty Corp., 18 AD3d 640, 641 [2d Dept 2005]), the contract is valid and enforceable so long as any conditions thereto were satisfied.

To that end, a condition precedent is an event, other than the lapse of time, the occurrence of which triggers the duty to perform to arise (see IDT Corp. v Tyco Group, S.A.R.L., 2009 NY Slip Op 07481, *1 [Oct 22, 2009]; Calamari and Perillo, Contracts § 11-5, at 439 [3d ed]). Here, paragraph two of the agreement states, in pertinent part, "the sale will take place only upon my vacating the premises or finding a suitable apartment at Manhattan Plaza or elsewhere for my occupancy" (Defs.' Aff. in Supp., Ex., C [emphasis added]). The Court of Appeals has expressly found "the use of terms such as if,' unless' and until' constitutes unmistakable language of condition'" (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009], quoting Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 691 [1995]). Similarly, [*4]this court finds that like the language "[u]nless and until" (MHR Capital Partners LP v Presstek, Inc., 12 NY3d at 645-646) and "contingent upon" (Moran v Erk, 11 NY3d 452, 456 [2008]), the language "only upon" used in the document at issue here, created a condition precedent to the plaintiff's duty to perform arising.

Moreover, plaintiff's argument that the contract was conditioned upon Molloy vacating and moving into Manhattan Plaza or some other apartment is contrary to the plain language of the contract (Memo of Law in Opp., at 3-5; Reply Memo of Law in Further Supp. and Opp., at 3) (see Moran v Erk, 11 NY3d 452, 457 [2008]).[FN2] The contractual language is unambiguously disjunctive, not conjunctive (see White v Continental Cas. Co., 9 NY3d 264, 267 [2007] ["the interpretation of such provisions is a question of law for the court"]). Thus, there are three manners in which the condition could have been satisfied: by Molloy either (1) "vacating the premises or [(2)] finding a suitable apartment at Manhattan Plaza or [(3) finding a suitable apartment] elsewhere for [her] occupancy."

The parties argue that the issue then becomes the construction of the word "vacating" and whether Molloy did so by virtue of her death. However, this court need not address that issue because a party claiming that a contract is unenforceable by virtue of the nonoccurrence of a condition precedent cannot have frustrated the condition's occurrence. Every contract contains "an implied obligation . . . not to frustrate the performance of [a] condition precedent" (HGCD Retail Servs., LLC v 44-45 Broadway Realty Co., 37 AD3d 43, 53 [1st Dept 2006]; see ADC Orange, Inc. v Coyote Acres, Inc., 7 NY3d 484, 490 [2006]; Kooleraire Serv. & Installation Corp. v Board of Educ. of City of NY, 28 NY2d 101, 106 [1971]). Accordingly, this court finds that "[w]hen [Molloy] failed to vacate the property . . . and make it ready for sale, as she agreed to do, she breached the agreement [and defendants] clearly had the right to seek specific performance" thereafter (Brower v Brower, 226 AD2d 92, 94 [3d Dept 1997]).

The final issue regarding the contract's validity is the effect, if any, of Pliskin's annexation of the two pages to the original document. Contrary to plaintiff's framing, Supreme Court (Kapnick, J) did not find, nor did defendants concede, that Pliskin's actions rendered the contract unenforceable (Defs.' Aff. in Supp., Ex., I). The Supreme Court decided the narrower issue of whether the document was properly recorded pursuant to RPL § 298. It was not. Thus, the document was expunged from the records of the City Register. Plaintiff offers no authority to support the conclusory contention that the fact that the document was not in recordable form vitiates, or even bears any pertinence to, the document's validity. Additionally, this court is unpersuaded by plaintiff's argument that Pliskin's conduct constituted a "material alteration" to the agreement (Memo of Law in Supp. of Cross-mot., at 15-16). Pliskin's conduct had no effect on the terms of the agreement because, despite the physical alteration to the document, the terms sought to be enforced were by no means altered.

Once defendants establish the contract's validity, they must demonstrate entitlement to [*5]specific performance by showing that they "substantially performed [the] contractual obligations and [are] willing and able to perform its remaining obligations, that [plaintiff is] able to convey the property, and that there [i]s no adequate remedy at law" (EMF Gen. Contr. Corp. v Bisbee, 6 AD3d at 51[1st Dept 2004], lv denied 3 NY3d 607 [2004] and lv dismissed 3 NY3d 656 [2004). Defendants "made a prima facie showing of . . . entitlement to judgment as a matter of law [seeking] specific performance of the contract, by submitting proof of the validity of the contract of sale, [their] performance thereunder, and that [they] was ready, willing, and able to proceed to closing" (Lot 57 Acquisition Corp. v Yat Yar Equities Corp., 63 AD3d 1109, 1111 [2d Dept 2009]). Defendants did so by submitting the written contract signed by the parties (Defs.' Aff. in Supp., Ex., C), a copy of the check made payable to Molloy evidencing that they tendered the consideration set forth in the contract (Defs.' Aff. in Supp., Ex., D), and an affidavit attesting that they "stand ready and willing to close [and] are prepared to pay the sum of $184,500 in cash" (Defs.' Aff. in Supp., Guerrieri Aff. ¶ 31) (see Sosa v Acevedo, 40 AD3d 268, 269 [1st Dept 2007]; Centaur Props., LLC v Farahdian, 29 AD3d 468, 469 [1st Dept 2006]; 480 Assoc., Inc. v S.A. II, LLC, 21 AD3d 814, 814 [1st Dept 2005]). Inasmuch as "each parcel of real property is presumed to be unique" (Alba v Kaufmann, 27 AD3d 816, 818 [3d Dept 2006]), defendants would have no adequate remedy at law (see Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 192 [1986]; Fallati v Mackey, 31 AD3d 879, 881 [3d Dept 2006], lv denied 7 NY3d 711 [2006]). Thus, defendants are entitled to specific performance.

Plaintiff's allegations in opposition fail, as a matter of law, to raise a question of fact sufficient to withstand summary judgment (see Piga v Rubin, 300 AD2d 68, 69 [1st Dept 2002], lv dismissed and denied 99 NY2d 646 [2003]). Plaintiff's contention that defendants' purportedly "unclean hands" preclude them from equitable recovery is without merit (Memo of Law in Supp. of Cross-mot. at 16). As discussed above, even if plaintiff's unsupported allegation that defendants ratified Pilskin's conduct were true, the effect, if any, was entirely ex facie and had no bearing on the validity of the contract because neither the execution nor the terms of the agreement were affected by the recording, nor by the subsequent expungement. Thus, "the rule that a subsequent alteration fraudulently made discharges the obligation of the other party is not here applicable. To invoke that rule it is essential that the alteration be a material one" (Phalanx Corp. v Philite Radiant, 19 AD2d 515, 515 [1st Dept 1963], citing Gleason v Hamilton, 138 NY 353 [1893] and Restatement [First] of Contracts §§ 434, 435). "[An] immaterial alteration of an instrument does not affect its validity" (3 NY Jur 2d, Alteration of Instruments § 2). Equally unpersuasive are plaintiff's allegations that the recording and expungement evince that the defendants fraudulently induced Molloy into executing the contract (Reply Memo of Law in Further Supp. and in Opp., at 5). Even when "all reasonable inferences [are] drawn in [plaintiff's] favor" (Gulf Ins. Co. v Transatlantic Reins. Co., 2009 NY Slip Op 06788, * [1st Dept Oct. 1, 2009]), this claim is untenable because the allegations are speculative, entirely unsupported by plaintiff's submissions, vague, and not pled with particularity (see CPLR 3016 [b]; Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]), and contrary to the plain language of the agreement (see Judnick Realty Corp. v 32 W. 32nd St. Corp., 61 NY2d 819, 822 [1984]).

Finally, this court is unpersuaded by plaintiff's repeated focus on the current fair market value of the property claiming that if defendants prevail, they would be granted a "windfall [*6]profit" (Memo of Law in Supp. of Cross-mot., at 11). Even an "enormous increase in value" (EMF Gen. Contr. Corp. v Bisbee, 6 AD3d at 55) "of real property between the time the contract is entered into and the time when specific performance is sought, in and of itself, is not a sufficient ground for the denial of specific performance" (Marinoff v Natty Realty Corp., 17 AD3d 412, 417 [2d Dept 2005]). Nor can it be said that defendants have unconscionably delayed such that specific performance should be denied because defendants promptly demanded the conveyance on May 18, 2007, a mere ten days after Bonner was appointed executor of Molloy's estate (Aff. in Supp. of Cross-mot. ¶ 14; Defs.' Mot., Agreed Stmt. of Facts ¶ 14)(see id.; EMF Gen. Contr. Corp. v Bisbee, 6 AD3d at 51-54, 55 ["the increase in market value of the property does not in itself create injustice or inequity"]). Thus, defendants are entitled to summary judgment on the counterclaim for specific performance and plaintiff's cross-motion for summary judgment is accordingly denied. Therefore, it is

ORDERED that defendants' motion for summary judgment in their favor on the plaintiff's complaint is granted and the plaintiff's complaint is dismissed; and it is further

ORDERED the plaintiff's cross-motion for summary judgment is denied; and it is further

ORDERED, DECLARED and ADJUDGED that the February 14, 1981 agreement for the sale of 338 West 15th Street, New York, New York is a valid and enforceable contract for the sale of real property; and it is further

ORDERED that the defendants Guerrieri and Ordway's motion for summary judgment on their counterclaim for specific performance is granted and the plaintiff is directed to convey the premises to defendants for the balance of the purchase price, $184,500.00, within 45 days of service of a copy of this order together with notice of its entry; and it is further

ORDERED that defendants shall serve a copy of this decision and order with proof of notice of its entry upon all parties, and the Clerk of Court (60 Centre Street, Basement), who shall enter judgment accordingly.

This constitutes the decision and order of the court.

Dated:December 31, 2009____________________________________

New York, New YorkJ.S.C.

(2009 Pt 12 D & O105348_2005_004_gms(M4SJ_SpecPerfOfK).wpd) Footnotes

Footnote 1: Six months later, Molloy died; David Bonner was appointed executor of her estate and the caption in this matter was accordingly amended (Aff. in Supp. of Cross-mot., Ex., A ¶ 14).

Footnote 2: Plaintiff's argument that if "the first or' was replaced by the word on', [d]efendants['] entire argument would fail" (Reply Memo of Law in Further Supp. and Opp., at 3 Reply Aff. in Supp. 23) is untenable and "contrary to the plain language of the [agreement] and to basic principles of contract interpretation" (Sassi-Lehner v Charlton Tenants Corp., 55 AD3d 74, 79 [1st Dept 2008]; see Evans v Famous Music Corp., 1 NY3d 452, 458 [2004]).