Chan v Karakash
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Chan v Karakash 2012 NY Slip Op 30444(U) February 23, 2012 Sup Ct, NY County Docket Number: 651238/10 Judge: Doris Ling-Cohan 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] 4NED ON 212812012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Doris Ling-Cohan, Justice Part 36 MIRIAM CHAN, Plaintiff, F 28 2012 B -against- INDEX NO. 651238/10 MOTION SEQ. NO. 002 EDWARD KARAKASH and KARINE K . A R A ~ i j l #CLERK'S OFFICE c EW YORK Defendants. The following papers, numbered 1-12 were considered on the motion for sum- lixYB%s Notice of Motion/Order to Show Cause, Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: [ ] Ys e iudement : NUMBERED -Affidavits -Exhibits 1.2,3 4.$,6,7,8 9,10,11,12 [ X ]No Upon the foregoing papers, it is ordered that this motion is decided as indicated below. BACKGROUND Plaintiff Miriam Chan (PlaintiffBuyer) commenced this breach of contract action seeking the return of $175,000. On April 13, 2006, PlaintiffBuyer entered into a contract of sale, with riders, (collectively the Contract) with defendants Edward Karakash and Karine Karakash (collectively the Defendantdsellers), for the purchase of Defendants/Sellers' residential property located at 53-15 Queens Boulevard, Woodside, New York, New York (Premises). Pursuant to the terms of the Contract, the purchase price was set at $5,550,000, with a downpayment of $100,000 and an additional $175,000 to be paid upon the re-zoning of the Premises. It is undisputed that PlaintiffBuyer paid a total amount of $275,000 towards the purchase of the Premises, but breached the Contract by failing to close title. Thereafter, DefendantdSellers commenced an action against PlaintifUBuyer in Supreme Court, Queens County, index number 2945 1/07 (Prior Action), seeking specific performance. In the Prior I [* 2] Action, PlaintiffBuyer filed a motion to dismiss which was granted in a decision by Honorable Marguerite A. Grays, dated June 3,2008 (Decision). The Decision held that specific performance, in the Prior Action, was not viable, as the Contract provided for the retention of the downpayment, as the sole remedy for a breach by Plaintiff/Buyer. See Notice of Motion, Exhibit 4,Decision, p. 2. After the issuance of the Decision, DefendantdSellers retained the $275,000 paid by Plaintifi7Buyer. PlaintiffBuyer commenced this current action alleging that DefendantslSellers breached the Contract and was unjustly enriched by retaining the $175,000 payment, made after the Premises was rezoned, in addition to the downpayment amount of $100,000. Defendants/Sellers now move to dismiss PlaintiffA3uyer s complaint pursuant to CPLR 32 1 1(a)( 1) and ( ) on the grounds that her causes of 5, action are barred by documentary evidence and res judicata. Alternatively, DefendantdSellers move for summary judgment pursuant to CPLR 32 12, based upon the Prior Action having decided all issues and collateral estoppel. By interim order dated, October 1 1, 201 1, the court provided the parties with notice that, pursuant to CPLR 321 l(c), the current motion to dismiss would be treated as a motion for summary judgment, wherein the court is permitted to search the record, and where appropriate, grant judgment for any party, even the nonmoving party; the parties were given an opportunity to submit additional papers. DI$CUS$ION In support of its motion, Defendants/Sellers proffer, inter alia, the Contract and the Decision. Defendants/Sellers allege that the Prior Action was based upon the same set of facts as this action, that the Decision was served on the same attorneys which represented Plaintiff/Buyer in the Prior Action as in this action, and that PlaintiffJBuyer never contested DefendantdSellers retention of $275,000, until almost two years after the Decision. DefendantdSellers argue that no issues of fact exist as the Queens Supreme Court decision has decided all issues, and thus, res judicata and collateral estoppel apply. 2 [* 3] Defendants/Sellers further argue that any and all issues could and should have been raised in the Prior Action, or on an appeal of the Decision. Plaintiff/Buyer opposes Defendants/Sellers motion stating that the issue of the downpayment amount was not determined by the court in the Prior Action and that neither res judicata nor collateral estoppel applies. PlaintiffBuyer argues that the Contract clearly states the downpayment amount is $100,000. She further argues that the $1 75,000 was an additional payment to be paid upon the re-zoning of the Premises and that, according to the Contract, was not a portion of the downpayment amount. Plaintifmuyer contends that the Decision never resolved the issue concerning the amount DefendantdSellers were entitled to retain under the liquidated damages clause of the Contract. Plaintifmuyer states she obtained dismissal in the Prior Action, prior to serving an answer, so she did not have an opportunity to set forth any counterclaims. Additionally, PlaintiffBuyer states that she prevailed in the Prior Action so there w s no need to appeal the Decision. a The Decision conclusively states that specific performance wm not a remedy pursuant to the Contract and that the sole remedy for a breach by Plaintiff/Buyer was the retention of the downpayment by Defendants/Sellers. See Notice of Motion, Exhibit 4, Decision, p. 2. The Decision refers to Paragraph 3 of the Contract with respect to DefendantdSellers right to retain the downpayment due to PlaintiffiBuyer s breach, but fails to specify the amount which the DefendantBellers are entitled to retain. The Contract, Paragraph 3, states in pertinent part that: The purchase price is $5,550,000.00 payable as follows: (a) on the signing of this contract ...to be held in escrow pursuant to paragraph 6 of this contract (the Downpayment ): $100,000.00 (b) an additional $175,000.00 upon the rezoning of the premises to RX7/C2-3 . Notice of Motion, Exhibit 2. Significantly, the downpayment is specifically defined in the Contract as $100,000. Defendants/Sellers argument that this action is barred by res judicata andor collateral estoppel 3 . . _- .-. [* 4] is misplaced. It is well settled that New York has adopted the transactional analysis approach to res judicata. Under the transactional analysis approach..., once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy. Cornwall Warehousing, h c . v Town oflyew Windsor, 238 AD2d 370, 371 (Znd Dep t 1997) (internal quotations omitted). However, allegations and claims arising from acts occurring after a prior lawsuit are not barred by res judicata. O Brien v City of Syracuse,54 NY2d 353, 358 (1981). Here, the Decision granted PlaintiffBuyer s motion to dismiss, based on documentary evidence, on the ground that the Contract unambiguously stated that specific performance was not a remedy to a breach by Plaintiffmuyer and that retention of the downpayment was Defendmts/Sellers sole remedy. However, the Decision failed to address the issue of the amount of the downpayment and the amount that could be retained by DefendantEellers. After issuance of the Decision, it is not disputed that Defendantdsellers retained $275,000, which had been paid by PlaintiffBuyer. Since the act of retention, as permitted by the Decision, did not occur until after the issuance of the Decision, PlaintiffA3uyer s claims for unjust enrichment and breach of contract did not accrue until after the Prior Action; thus this action is not barred by res judicata. The doctrine of collateral estoppel also does not bar this case. The doctrine of collateral estoppel ...p recludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity. Ryan v New York Tel. Co., 62 NY2d 494, 500 (1 984). Two essential elements must be satisfied before the doctrine of collateral estoppel can be invoked: (1) there must be identity of an issue which has necessarily been decided in the prior action and is decisive of the present action; and (2) there must have been a full and fair opportunity to contest the decision now said to be controlling. Gilberg v Barbieri, 5 3 NY2d 285, 291 (1 98 1). The party seeking the benefit of collateral estoppel has the burden of demonstrating those 4 [* 5] issues which were decided in the first action. See Ryan v New York Tel, Co., 62 NY2d at 501. Once it has been established that the issue in the prior litigation is identical to the issue in the present litigation, the party attempting to defeat the estoppel has the burden of demonstrating the absence of a full and fair opportunity to litigate the issue in the prior action. Id. Here, in the Prior Action, DefendantdSellers sought specific performance alleging that PlaintiffBuyer breached the Contract. The issue as to the downpayment amount was not litigated nor decided in the Prior Action. As correctly argued by Plaintiff/Buyer, the only issue determined in the Prior Action was whether DefendantdSellers were entitled to specific performance. Furthermore, in lieu of filing an answer in the Prior Action, Plaintiffrnuyer moved to dismiss the Defendants/Sellers complaint, which was granted and therefore Plaintiff/Buyer never had an opportunity to interpose an answer to assert any counterclaims with respect to the downpayment amount. Thus, it is clear from the Decision that the amount DefendanVSellers were entitled to retain upon Plaintiffh3uyer s breach was not previously decided in the Prior Action. As neither element to invoke collateral estoppel is satisfied, Defendants/Sellers motion seeking dismissal based upon collateral estoppel is denied. It is well settled that ( [o]n a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on, and ... circumstances extrinsic to the agreement or varying interpretations of the contract provisions will not be considered, where ... the intention of the parties can be gathered from the instrument itself. Maysek & Moran, Inc. v S. G. Warburg d Co., Inc., 284 AD2d 203,204 (1 Dep t 2001), quoting Lake Constr. & Development Corp. v Ct of New York, iy 21 1 AD2d 514,515 (1 Dep t 1995). CPLR 3212(b) allows the court to search the record, and where appropriate, grant judgment for any party, even the nonmoving party. Here, there are no factual issues in dispute and the only issue, is one of contract interpretation. When interpreting unambiguous contract provisions, matters extrinsic to the agreement may not be 5 [* 6] considered when the intent of the parties can be gleaned from the face of the instrument. Chimart Assoc. v Paul, 66 NY2d 570, 572-573 (1986). The best evidence of what parties to a written agreement intend is what they say in their writing . Greenfield v Philles Records, Inc.,98 NY2d 562, 569 (2002) (internal citations omitted). A writing that is clear will be enforced according to its plain meaning. Id. Here, the Contract is clear on its face. As indicated above, Paragraph 3 of the Contract, unambiguously provides that the downpayment amount is $100,000, in addition to requiring a payment of $175,000, upon the re-zoning of the Premises; the amount of $175,000 was not labelled a downpayment in the Contract. Thus, as it is not disputed that Defendants/Sellers retained more than the downpayment amount of $100,000 (as specifically provided for in the Contract), Plaintiff/Buyer is entitled to summary judgment on her breach of contract claim. Accordingly, it is ORDERED that Defendants motion is denied in its entirety; and it is further ORDERED that summary judgment is granted in favor of Plaintiff; and it is funller ORDERED that judgment shall be entered against Defendants in the amount of $175,000, together with interest, from June 3,2008, as calculated by the Clerk, together with costs and disbursements, to be taxed by the Clerk upon submission of an appropriate bill of costs; and it is further ORDERED that within 30 days of entry, Plaintiff shall serve a copy of this decisiodorder upon all parties with notice of entry. This constitutes fne decisiodofder of the Court. Check one: [ X ] FINAL DISPOSITION Check If Appropriate: [ ] DO NOT POST J:\Summaq Judgmcnt\Chan v Karakash [ ] NON-FINAL DISPOSITION - doc. evidence, res judicatk collateral estoppcLwpd 6
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