Burkett v Magna Contr. Corp.
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Burkett v Magna Contr. Corp. 2012 NY Slip Op 30904(U) March 30, 2012 Supreme Court, New York County Docket Number: 100520/11 Judge: Paul Wooten 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. ANNED ON41912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - N E W YORK COUNTY HON. PAUL WOOTEN PART Justice 7 PERRY BURKETT, INDEX NO. Plaintiff, - against 100$20/1I - MAGNA CONTRACTING CORP. and WEST 5 4 7 0 W E R LLC, Defendants. WEST 54 TOWER LLC, Third-party Plaintiff, 002 MOTION SEQ.NO. INDEX NO. $90206/1 I - against HALCYON PARTNERS INC. & FRANK RAY DELORIA, Third-party Defendaets. i Q The following papers numbered 1 to Gbrrtracting Corp, Notice of Motlonl Order to Show Answering Affidavits - Exhlblts (Memo) Replying Affidavits (Reply Memo) This action arises from a real estate tranSqction for the sale of propetly owned by the @ nat &dn Magna contracting CorporatiOn (Magna). Before the Court is a motion by Magna for summary judgment pursuant to CPLR 3212 OI its cross-claim against co-defendant West 54 Tower LLC (West 54) in the sum of $200,000.09 plus the Gosts and di$bursgmeets i f the w s s M m . Magna also seeks an order directing the Clerk of the Court to enter judQment id favor of Magna and against West 54 in t h e sum of $200,000.00, and dikcting payment to Magna or its attorney the sum of $196,560.00 previously deposited with the County Clerk by plaintiff Perry Burkett, Esq. (Burkett) pursuant to an order of this Court dated May 19, 201 1. West 54 opposes this application. Page 1 of 7 [* 2] BACKGROUND This action arises fi-om a contract of sale executed between Magna and Thomas Morrison (Morrison) on August 4, 201 0, wherein Morrison agreed to purchase from Magna property located at or known as 424-426 West 54"' Street, New York, New York 10019 (the premises) (Stapinski Affidavit, 7 7 3-4, exhibit A). Pursuant to the contract of sale, Morrison was to pay a total purchase price of $5,200,000.00 (Stapinski Affidavit, exhibit A). There was an additional rider to the contract of sale which stated that Morrison had the right to assign the contract to a business entity or a limited liability company formed in New York provided, among other things, that the assignee assumed the obligations of the contract (id.). The original closing date on the premises was scheduled for September 30, 201 0, however Magna granted Morrison an extension to November 15, 2010. On November 15, 2010, Morrison requested another extension from Magna, vi/hich waS granted. Magna also agreed to allow Morrison to exercise his rights under the contract ridei- and assign his rights under the contract of sale to West 54, which he did pursuant to an Assigvrnent and AsSumption of Contract of Sale dated November 19, 2010 (see Notice of Motion, exhibit C) Magna wqs represented in this traqsaction by Burkett. Bdrkett?also acted as the escrow agent for the transaction and held the $200,000.00 down payment on the premises paid by Morrison at the time of the corltract of sale's original execution. At the, 6nd of Nwemdkr 2010, West 54 was still unable to clbse on the premises On December 3, 2010 Magna's president, Jack Stapinski, sent a letter to Burkett informing him that Magna wished to have the $200,0d0.00 down payment paid out to it in the event that West 54 di\d not close the transaction by December 10, 2010. Burkett sent a letter to West 54's counsel which stated thAt if West 54 did not close the transaction and purchase the premises by December I O , 2010, the down payment would be forfeited (Burkett Affirmation, exhibit C). The sale of the property did not take place Page 2 of 7 [* 3] Burkett commenced the underlying interpleader action against Magna and West 54 by Summons and Verified Complaint dated January 11, 201 1. On February 8, 201 1, Magna submitted a Verified Answer and Cross-Claim against West 54. According to Magna, West 54 failed to close and complete the transaction to purchase the premises on December 10, 2010 and is in default for failure to comply with its obligations under the terms of the contract of sale, thus entitling Magna to retain the down payment. On March 3, 201 1, West 54 filed a Verified Answer to the cross-claim, which included affirmative defenses, and a third-party summons and complaint The affirmative defenses included, iuter alia, that Magna was aware that West 54 was having difficulty getting financing, Magna unreasonably denied their request for an extension of time by which to close, West 54 continues tq seek alternativetfinahcing, and that Magna would be unjustly enriched if West 54 was required to forfeif its dd Pursuant to 9 2.05(a) of the contract of sale which states, among other things, that the escrow agent shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Supreme Court of the county in which,the Lapd is located (Stapinski Affidavit, exhibit A ), Burkett made a motion for an order perwittin dpwn payment monies to the Clerk of the Scrp-eme Court. BUrkett S motioh y otder of this Court dated May 19, 201 1, and Burkqtt deposited the sum of $ , $3;050.00 for costs and disbursements for a tot81 of $196,650.00 with the , Magna now moves for an order directing the Clerk of the Court to enter judgment in its favor and against West 54 in the sum of $200,000.00 and directing payment to Magna or its attorney the sum previously deposited by Burkett with the County Clerk. In support of its motion Magna submits, inter alia, the affidavit of Jack Stgpinski, a copy of the contract of sale dated August 4, 2010, a copy of assignment of the contract of sqle between Morrison and West 54, affirmation of Alison Blaine, Esq.,a cppy Qf the Summons and Verified Complsint and Magna s Verified Answer arid Cross-Claim, the affirm Pgge 3 of 7 \ [* 4] copy of this Court s order dated May 19, 201 1 , and a memorandum of law, Magna contends that there is no defense to or material issue of fact raised by its crossclaim because it is based on documentary evidence. Magna maintains that West 54 breached the contract of sale by failing to close on the premises on December 10, 2010, the alleged final closing date extension, and that said closing date was not contingent upon West 54 obtaining mortgage financing. Specifically, Magna points to paragraph 1 of the rider to the contract of sale, which reads as follows: it is understood that this contract shall not be subject to or contingent upon the Purchaser obtaining any type of mortgage financing (Notice of Motion, exhibit A). Magna argues that it was ready, willing, and able to Close on the premises and West 54 failed to fulfill its abligations to purchase the property. Moreover, Magna proffers it is entitled to retain the $200,000.00 down payment previously deposited with the Courb, pursuant to section 13.04 of the contract of sale, which states: if p u r c h a w shall default in the performance of its obligation under this contract to purchase the Premises, the sole remedy pf Seller shall be to retain the dpwn payment as liquidated damages for all loss, damage and expense suffered by Seller, including without limitation the loss of its bargain. In opposition, We$t 54 submits, inter d i 4 , a memorandum of law, affirmalian of Jerrietta R . Hollinger, Esq,, affirmation of David L. Ganz, ESq., affirmation of Rita Mica Giant, member of CFS Capital Funding LLC, and a copy of a loan commitment offered to West 54 )Towet. West 54 alleges, among other things, that Magna would be unjustly ehriched if it were s allowed to retain the down payment as Magna continued tp collect rent and ~ C c u p y p w e in the premises, and Magna was aware that West $4 was having difficulty obtaining financing and was assisting in the process. Moreover, West 54 asserts that Magna s motion should be denied in its entirety because Magna cannot convey clear title to the premises due to numerous encroachments. In reply, Magna asserts that West 54 s inability to obtain financing is irrelevent as the Page4of 7 [* 5] contract states that the sale of the premises is not contingent upon the purchaser obtaining financing. Moreover, Magna arghes that even if it was incapable of conveying marketable title, in order to hold a seller in default the purchaser must first tender performance and demand good title, allowing a seller tim@to cure any such defects, which West 54 failed to do here. SUMMARY JUDGMENT STANDARD Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Mosp., 68 NY2d 320, 324 [1986], Andre v Porneroy, 35 NY2d 361, 364 [1974]). The party, moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering suffiaient evidence in admissible form demorlstrating the abserlce of I material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 \ Santiago v Filsbiri, 35 AD3d 184,185-186 [I Dept 20061; CPLR 321 2 [b]). The f st make such a showing requires denial O f the motion, regardless Qf tHe sufficiency of thq opposing papers (see Smalls v AJI lndus., Inq., 10 NY3d 733, 735 [2008]). Once'a prirliq facie showing has been made, however, "the burden shifts to the ngnmoving party to prod evidentiary proof in admiSsible fqrm dfficient to establish the exist&e,of materiql Ii fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [ a/so Zuckerrnan v City of New York, 49 NY2d 557, 562 [198Q]; CP 1 When deciding a summary judgment motion, the Court's r any triable issues exist, not to determine the merits of any such issues (see Sillrna Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). T Court views the evi most favorable to the nonmoving party, and gives the nonmoving the beDefit of all I reasonable inferences that can be drawn from the evidence (Tee v Stop & Shop, Inc.', 65 NY2d 625, 626 [ISSS]). If there is any doubt as to the existence of a triable issue, judgment should be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]) Page5of t I [* 6] DISCUSSION The Court finds that Magna met its prima facie burden to establish its qntitlement of summary judgment on its cross-claim against West 54. Based on the documentary evidence submitted in support of its motion, Magna has shown that it was ready, willing, and able to close on the premises and that West 54 breached the contract of sale by failing to consummate the transaction on December 10, 201 0 (see Diplomat Props, L. P. v Kornar Five Assoc., LLC, 72 AD3d 596 [ I s t Dept 20101). In light of West 54 s default, Magna is entitled to retain the deposit as liquidated damages in accordance with the contract of sale (see contract of sale 513.04; see also 115-117 Nassau St., LLC v Nassau Beekman, LLC, 74 AD3d 537 [ I s t Dept 20101; Atlantic I Dev. Group, LLC v 296 E. 149th St., LLC, 70 AD3d 528 [ I s t Dept 20101 [defendant granted summary judgment and entitled to retain the dowq paymeet as liquidated damaggs in accordance with the contract of sale]; Diplomat Props, L P , 72 ADqd at 600) The Court finds that West 54 fails to raise a triable issue of fact in opposition. Accordingly, Magpa is entitled to judgment in its favor on its cross-claim against West 54 and is entitled to receive the sum previously deposited with the Clerk of the Court. GONCLUSION Accordingly it is, ORDERED that the portion of defendant Magpa Contracting Corp. s motion for summary judgment on its cross-claim against defendant West 54 TQwer LLC is granted; and it ISfurther, ORDERED that the portion of Magna Cdntracting Corp s motion dii-ecting the County Clerk to enter judgment in favor of Magna Contracting Csrp. and against West 54 Tower LLC in the sum of $200,000.00 is granted; and it is further, ORDERED that Magnd is directed to serve a capy Of this order with notice of entry upon all parties and upon the Clerk of the Court, who is directed to enter judgment accordingly; and it Page 6 of 7 [* 7] is further, QRDERED that upon receipt of a copy of this order, the Clerk of the Court is directed to pay to counsel for Magna Contracting Corp. the sum of $196,560.00 previously deposited with the Clerk of the Court; and it is further, ORDERED that the remaining parties are directed to appear for a compliance - conference in Part 7, 60 Centre Street, Room 341 bn June 13, 2012 at 1 1 : O O A.M. This constitutes the Decision and Order of the Court I* Check one: * n FINAL DISPOSITION Check if appropriate: : CJ DO NOT POST Page 7 of 7 NON-GINAL DISPOSITION rl RE+ERE,N'CE
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