Schemitsch v Valley Enters. Parks & Realty LLC

[*1] Schemitsch v Valley Enters. Parks & Realty LLC 2011 NY Slip Op 52267(U) Decided on December 21, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2011
Supreme Court, Queens County

Ernest Schemitsch

against

Valley Enterprises Parks & Realty LLC and COBLESKILL COUNTRY BOY REALTY INC.,



13445/2011



For the Plaintiff: Dustin Bowman, Esq., 125-10 Queens Boulevard, Kew Gardens, New York 11415

For the Defendant Valley Enterprises Parks & Realty LLC : Towne, Ryan & Partners, P.C., by James T. Towne, Esq., 450 New Karner Rd., Albany, New York 12212

For the Defendant Cobleskill Country Boy Realty Inc.: Edward Wildove, Esq., 558 Main Street, Cobbleskill, New York 12043

Charles J. Markey, J.

The following papers numbered 1 to 19 read on this motion by defendant Valley Enterprises Parks & Realty LLC ("Valley"), pursuant to CPLR 507 and 511(b), to transfer venue from Queens County to Saratoga County; and this cross motion by plaintiff, pursuant to CPLR 3212, for partial summary judgment dismissing the second counterclaim for specific performance asserted by defendant Valley.

Papers Numbered

Notice of Motion - Affidavits - Exhibits ..........................................................................1-4

Notice of Cross Motion - Affidavits - Exhibits ................................................................5-9

Answering Affidavits - Exhibits ...................................................................................10-17 [*2]

Reply Affidavits ............................................................................................................18-19

Plaintiff commenced this action asserting causes of action for unjust enrichment. Plaintiff alleges that he executed an agreement ("the asset purchase agreement") for the purchase of certain assets of defendant Valley Enterprises Parks & Realty LLC ("Valley"), including a mobile home park known as "Rolling Ridge Estates," and real property located within Saratoga and Fulton Counties ("the subject property") in New York State.

Plaintiff also alleges that in connection with his execution of the asset purchase agreement, he deposited $50,000.00 as a down payment on the purchase price, into escrow. Plaintiff also alleges that the asset purchase agreement was never fully executed and delivered by defendant Valley. Plaintiff maintains that, on June 2, 2011, he sent a written notice to defendant Valley cancelling and terminating the agreement. Plaintiff seeks a judgment directing the return of a down payment to him and declaring that the asset purchase agreement was terminated and cancelled by plaintiff.

Defendant Valley served an answer, denying the material allegations of the complaint, asserting various affirmative defenses, and interposing counterclaims for alleged breach of the asset purchase agreement. Defendant Valley seeks a judgment awarding monetary damages, compelling specific performance of the asset purchase agreement, and declaring it is entitled to retain the deposit made by plaintiff. Plaintiff served a reply to defendant Valley's counterclaims, admitting, among other things, that he agreed to purchase assets pursuant to the terms of the asset purchase agreement, but denying other allegations of the counterclaims.

Defendant Valley moves to transfer venue to Saratoga County, asserting that plaintiff's choice of Queens County is not proper, because the subject property in dispute lies in both Saratoga and Fulton Counties.

Plaintiff opposes the motion to change venue, asserting Queens County is a proper venue since he resides in Queens, and cross moves for partial summary judgment dismissing the second counterclaim asserted by defendant Valley. Plaintiff asserts defendant Valley is no longer able to perform its obligations under the asset purchase agreement, and therefore, the counterclaim for specific performance is not viable and should be dismissed. In support of his cross motion for partial summary judgment dismissing the second counterclaim for specific performance, the plaintiff offers, among other things, his own affidavit and a copy of a letter dated September 9, 2011 sent by facsimile transmission by counsel for defendant Valley to plaintiff's attorney.

Defendant Country Boy appears in support of the motion for change of venue. Defendant Valley opposes the motion for partial summary judgment dismissing its second counterclaim.

Upon the foregoing papers, with respect to the cross motion by plaintiff for partial summary judgment dismissing the counterclaim for specific performance asserted by defendant [*3]Valley, the proponent of a summary judgment motion "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," (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of its position (see, Zuckerman v City of New York, 49 NY2d 557, supra).

A vendor of real property is not entitled to specific performance of its contract of sale unless it can demonstrate that it is able, ready, and willing to comply with its contract by conveying the title and quantity of land that it contracted to sell (see, Chesebro v Moers, 233 NY 75, 81 [1922]; Thomas v Loomis, 273 App Div 680 [4th Dept. 1948]; see generally, 91 NY Jur. 2d, "Real Property Sales and Exchanges" § 256).

The September 9, 2011 letter, sent by counsel for defendant Valley to plaintiff's attorney, states:

I have tried to reach you on numerous occasions over the past two weeks regarding your letter which indicated that your client wished to go forward with the purchase of the subject property. I have had no response to my calls and messages. Please be advised that my client is moving forward with the sale of the property to another purchaser. Accordingly, we will continue to hold your client liable for the difference in the purchase price and all costs and expenses, including attorneys' fees related to the aborted sale to your client.

According to plaintiff, this letter demonstrates that defendant Valley has contracted to sell, or has sold, the subject property to another purchaser after the commencement of this action, and thus can no longer perform its obligation to convey title in accordance with the terms of the asset purchase agreement.

Defendant Valley argues that it remains able to convey title to plaintiff in accordance with the terms of the asset purchase agreement. Valley offers the affidavit dated October 12, 2011, of Eric Dolen, its president, indicating that the prospective purchaser mentioned in the September 9, 2011 letter, did not execute any contract of sale for the subject real property.Dolen states that defendant Valley is ready, willing, and able to complete the conveyance to plaintiff.

Dolen's affidavit shows that material issues of fact exist as to whether defendant Valley is ready, willing, or able to perform under the asset purchase agreement (see, Zuckerman v City of New York, 49 NY2d at 562, supra). Under such circumstances, the plaintiff is not entitled to partial summary judgment dismissing the second counterclaim of defendant Valley for specific performance. The cross motion by plaintiff for partial summary judgment dismissing the counterclaim asserted by defendant Valley for specific performance is denied. [*4]

With respect to the motion by defendant Valley to change venue, in most actions, venue is based on residence and may be brought in the residence county of any party (CPLR 503[a]). If the action affects title to real property, however, proper venue is the county in which the property is situated (CPLR 507). Although a counterclaim does not ordinarily affect venue, the assertion of a counterclaim subject to mandatory venue requirements will govern venue (see, Sterling Commercial Corp. v Bradford, 32 AD2d 952 [2nd Dept. 1969] [the demand for judgment in the counterclaim affected title to real property requiring a change of venue to the county where the property was located]; Zaczek v Zaczek, 27 Misc 2d 740 [Sup Ct Nassau County], aff'd, 14 AD2d 808 [2d Dept 1961] [defendant granted change of venue where his counterclaim sought partition]; Nicoletto v Pettit Supply Corp. of Huntington, 254 AD2d 750 [2nd Dept. 1938] [defendant granted change of venue where counterclaim brought the action within the scope of statutory venue provisions]; see also, Papp v Moutsinas, 188 AD2d 868 [3rd Dept. 1992] [defendant's counterclaim affecting real property within meaning of CPLR 507 required denial of defendant's motion for change of venue]; Sabo v Candero, 7 Misc 3d 1013(A), 2005 WL 911402, 2005 NY Slip Op 50583(U) [Sup Ct Rockland County 2005]).

In this instance, the complaint and the counterclaim are dependent on the determination of the same issues, namely, whether there is valid agreement between the parties regarding the sale of the subject real property, and, if so, whether plaintiff properly cancelled or terminated the agreement or whether it should be specifically performed by plaintiff or defendant Valley is limited to monetary damages. Because the relief sought by defendant Valley in its counterclaim for specific performance "would affect the title to, or the possession, use or enjoyment of, real property" (CPLR 507), which is located in Saratoga and Fulton Counties, venue is proper only in those counties (see, Regal Boy Enterprises Intern. VII, Inc. v MLQ Realty Management, LLC, 22 AD3d 738 [2nd Dept. 2005]). Furthermore, where, as in the present case, the real property is located in two counties, venue in either county is proper (see, Diamond v Papreka, 7 Misc 3d 1006(A), 2005 WL 782704, 2005 NY Slip Op 50465(U) [Sup Ct Kings County 2005]; Fairchild v Union Ferry Co., 117 Misc 470, 473-474 [Sup Ct Kings County 1921], aff'd, 202 App Div 734 [2nd Dept. 1922]).

Defendant Valley urges the case be tried in Saratoga County, insofar as a majority of witnesses it needs to defend the action reside in or near Saratoga County. Plaintiff, in response to the motion, does not express any preference as to Saratoga or Fulton Counties. Under such circumstances, the motion for change of venue is granted to the extent of transferring the venue of the action from Queens County to Saratoga County (see, Weinstock v Cleary, Gottlieb, Steen & Hamilton, 224 AD2d 611 [2nd Dept. 1996]; CJS "Venue" § 137).

The Clerk of Queens County shall forthwith deliver to the clerk of Saratoga County all papers filed in the action and certified copies of all minutes and entries, which shall be filed, entered, or recorded, as the case requires, in the office of the Clerk of Saratoga County. Defendant Valley is directed to serve a copy of the order with notice of entry on the Clerks of both Queens and Saratoga Counties. [*5]

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: December 21, 2012

Long Island City, New York