Bay Assoc. of Lawrnce, Ltd. v John P. Picone, Inc.
2012 NY Slip Op 31108(U)
April 16, 2012
Sup Ct, Nassau County
Docket Number: 004491/10
Judge: Stephen A. Bucaria
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[* 1]
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
HON. STEPHEN A. BUCARIA
Justice
TRIAL/lAS , PART
NASSAU COUNTY
BAY ASSOCIATES OF LAWRNCE , LTD.
and ONE RASON ROAD, LLC,
INEX No. 004491/10
Plaintiffs
MOTION DATE: Feb. 17, 2012
Motion Sequence # 001 ,
-against-
JOHN P. PICONE , INC. and 1285 REDFERN
ASSOCIATES , LLC
Defendants.
JOHN P. PICONE , INC. and 1285 REDFERN LLC
d//a 1285 REDFERN ASSOCIATES , LLC
Third- Part Plaintiffs
-against-
ABRAS , FENSTERMN , FENSTERMN
EISMAN , GREENBERG, FORMTO & EINIGER
LLP
Third- Par Defendant.
The following papers read on this motion:
Notice of Motion....................................... X
Cross- Motion............................................. X
002
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Index no. 004491/10
Affirmation in Opposition.......................... X
Reply Affirmation.. .................................... XX
Memorandum of Law................................. XX
Reply Memorandum of Law....................... X
This matter is before the Court on the motion by defendants/third part plaintiffs , John
P. Picone Inc. (Picone) and 1285 Redfern LLC d//a 1285 Redfern Associates , LLC
(Redfern) for summary judgment and on the cross motion by third par defendant , Abrams
Fensterman , Fensterman , Eisman , Greenberg, Formato & Einiger, LLP (Abrams) to dismiss
the third part
complaint.
BACKGROUN
The Parties
Plaintiff Bay Associates of Lawrence , Ltd. (Bay Assoc. ) is a New York
corporation and the owner of a parcel of real propert consisting
of a small ,
vacant lot
(adjoining parcel).
Plaintiff One Rason Road , LLC (Rason) is a New York corporation and the owner of
a parcel of real propert consisting of a commercial building and parking lot (Main parcel).
Bay Assoc. and Rason Road are primarily owned and controlled by principal Bil
Brooks.
Defendant/third- party plaintiff, Picone , a New York corporation , is a general
contractor and constrction company.
Defendant /third-part plaintiff, 1285 Redfern LLC d/b/a 1285 Redfern Associates
LLC (Redfern) is a New York limited liabilty company.
John P. Picone , individually, it the principal of Picone and Redfern.
Third-par defendant , Abrams , is a New York limited liabilty partnership and a law
firm retained by plaintiffs to represent them in the subject real estate transaction. Abrams
as attorneys for the plaintiffs/sellers is the holder of the down payment as Escrowee.
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Index no. 004491/10
Relief Sought
The defendants/third part plaintiffs , Picone and Redfern move
3212 , for an Order granting them summary judgment against the plaintiffs , Bay Assoc. and
Rason , dismissing the plaintiff s complaint against them and granting summary judgment
, pursuant to CPLR
against the plaintiffs on their counterclaims. Picone
judgment on their third part
claims
against the third
and Redfern also seek summar
part defendant ,
Abrams.
The third par defendant , Abrams , moves for an Order , pursuant to CPLR
(1) and (7), dismissing the third part complaint.
3211 ( a)
Factual Background:
On or about April 20 , 2009, the plaintiffs/sellers and defendants/buyers, entered into
two contracts for the sale ofthe real propert referred to as the Main and Adjoining parcels
for a total purchase price of $5 425 000 ($5 175 000 for the main parcel and $250 000 for
the adjoining parcel). The contract of sale for the main parcel was between
Rason and
Picone. The contact of sale for the adjoining parcel was between Bay Assoc. and Picone.
Pursuant to the, contracts , the defendants gave Abrams , the plaintiffs ' attorneys and
Escrowee " the sum of $542 000 ($517 000 for main parcel and $25 000 for adjoining
parcel) as the down payment for the purchase of the two parcels.
The terms of the two contracts of sale entered into between plaintiffs/sellers and
defendants/buyers were essentially identical other than the difference in purchase price for
the parcels , the amount of the down payment for the parcel , description of the parcels and the
paries.
The contracts provided the defendants with a 30- day due diligence period in which
they were entitled to perform environmental , engineering and title investigations , with an
unconditional right to terminate the contract in writing, within the due dilgence period , if
the environmental report revealed environmental conditions the defendant found
unacceptable. The contracts also provided an alternate right to perform a second phase of
environmental investigation if the first phase revealed potential contamination.
The first environmental investigation was commenced on April 22 , 2009 and a report
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Index no. 004491/10
was issued May 14 , 2009. That report identified environmental concerns and recommended
a second phase of investigation.
2009 the plaintiffs and defendants executed an Amendment (Amendment)
to the Contracts regarding the environmental issues. The Amendment set forth that the
defendants/buyers had agreed to conduct a second phase of environmental investigation in
accordance with the phase one report and recommendations. The Amendment also provided
that if the second phase of investigation indicates the existence of actual environmental
contamination the investigator is to prepare a plan for remediation with an estimate of costs.
Additionally, the amendment to the contracts set forth the what the parties ' rights and
obligations were , if actual environmental conditions were found to exist.
On June 10
The amendment provided that If environmental conditions were found to exist and the
cost of remediation was $35 000 or less , the seller at its own cost and expense shall remediate
prior to the closing. If the cost for remediation exceeds $35 000 , the buyers shall have the
option at their sole discretion to terminate the contract or to contribute the amount required
for remediation in excess of$35 000. However, ifthe cost of remediation exceeds $35, 000
and the purchasers give notice of their intent to terminate , the seller , within five days of
receipt of the notice to terminate , shall have the option to commit to the remediation at the
seller s sole cost and expense.
The Phase two report , dated August 6 , 2009 , identified environmental contamination
with an estimated cost to imp lement the remediation plan at between $139 750 and $ r 55 250.
Thereafter the parties entered into negotiations regarding possible resolutions for the
remediation of the environmental issues. One alternative offered by the sellers was to give
the buyers a $100 000 credit towards the purchase price with the buyers assuming the costs
of remediation. Other resolutions discussed was for the sellers to provide the buyers with a
written indemnity against losses due to the contamination , or the seller purchasing
environmental insurance for the premises.
No written amendment or modification agreement was entered into between the
parties regarding a resolution of the remediation issue.
On October 23 2009 , the defendants ' attorneys sent a letter to Abrams, the sellers
attorneys , stating that due to the unresolved title issues and the remediation of the premises
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Index no. 004491/10
the buyers were exercising their rights to terminate the contracts. Pursuant to that letter, the
buyers provided the sellers with notice that the contracts shall terminate in five days , if the
sellers do not commit in writing to remediating the premises within five days. On the same
day, the sellers ' attorneys , Abrams , sent a reply letter stating that the remediation issue had
been resolved , as the sellers agreed to allow the purchasers to conduct the remediation in
retur for a $100 000 reduction in the purchase price. The letter also stated that the sellers
broker has provided damage insurance to cover the propert and wil be discussing on the
following Monday the extent
of insurance needed to
make it easier
to agree to
indemnification of the purchasers.
On November 16 ,
2009 ,
purchasers '
attorneys sent follow up letter to Abrams
referring to its October 23 , 2009 notice of termination letter. In the November 16 , 2009
letter , the buyers ' attorney stated that the contacts automatically terminated five days after
the October 23 , 2009 letter since the sellers did not commit in writing to remediate the
propert within five days of receipt of the purchasers ' notice. It was also stated in the letter
that it was apparent from the marked up, Post- Closing Environmental Indemnity Agreement
that purchasers ' attorney received on November 10 , 2009 that there was no agreement on the
sellers ' part to remediate the premises and no agreement between the parties with respect to
remediation. In the letter, the buyers formally demanded a return of their down payment.
The down payment was not returned to the buyers. However , the parties ' attorneys
continued to have discussions regarding the outstanding title issues and the remediation.
On December 29 , 2009 , Abrams sent a letter to the buyers ' attorneys stating that they
had cleared all exceptions to title and that the sellers were ready to convey title and setting
January 21 , 2010 as the closing date. That letter did not mention the environmental
conditions or remediation.
On January 8 , 2010 , the buyers ' attorneys sent a letter to Abrams rejecting the closing
date , asserting that the contracts terminated as set forth in their November 16 2009 letter
and again demanded the return of the buyers ' down payment.
On January 25, 2010 , Abrams sent a letter to the buyers ' attorneys again stating that
the exceptions to title were cleared , it was ready to convey title and that if the buyers did not
proceed to closing, they had been instructed by the sellers not to return the down payment.
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Index no. 004491/10
Additional letters were exchanged between the paries in Februar 2010 , without any
resolution.
The parties attorneys also exchanged numerous emails both before and after the
purchasers ' attorneys notice to terminate letter dated October 23 2009.
The Lawsuit
The plaintiffs , Bay Assoc. and Rason , commenced this action in April 20 1 0 , asserting
one cause of action against defendants , Picone and Redfern , for breach of contract.
Defendants served a verified amended answer dated May 18 , 2010 with three
counterclaims. The first counterclaim is for a declaratory judgment declaring that the
defendants lawfully terminated the contracts and are entitled to return of the down payment
with interest from October 28, 2009. The second counterclaim is for breach of contract, and
the third counterclaim asserts a vendee s lien against the main and adjoining parcels.
The plaintiffs submitted a verified reply to amended answer with counterclaims , dated
June 4 2010.
On May 19 2010 the defendants commenced a third part action against third part
defendant , Abrams , asserting three causes of action against Abrams. The first , is for a
declaratory judgment declaring that the defendants lawfully terminated the contracts and are
entitled to return of the down payment with interest from October 28 2009. The second
for breach of contract, and the third is for breach of fiduciary duty.
Third part
defendant ,
Abrams appeared and interposed its verified answer to the third
part complaint dated , June 4 ,
2010.
Parties ' Arguments
With regards to the main action , the defendants contend they are entitled to summary
judgment against the plaintiffs dismissing the plaintiffs ' complaint against them and on their
counterclaims against the plaintiff pursuant to the
clear terms of the contracts
and
amendment. Defendants contend that , in accordance with the contacts and amendment , they
exercised their right to cancel the contract based upon the environmental contingency clause
and the plaintiffs wrongfully refused to return their down payment on the cancelled contracts.
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Index no. 004491/10
Pursuant to section 17. 01 of the original contracts , the buyers had a thirt day due
dilgence period in which to perform environmental , engineering and title investigations of
the premises. Section 17. 02
provided the buyers with an unconditional and unilateral right
to cancel the contracts , in writing, ifthe environmental investigation revealed environmental
conditions that the buyers found to be unacceptable. However , pursuant to section 17. 04
of
the contracts ,
the buyers had an alternate right to perform a second phase of environmental
testing as an alternative to terminating the contracts , which they also chose to do.
The defendants assert that with regards to agreeing to go forward with the second
phase of environmental testing they entered into an Amendment to the Contracts with the
plaintiffs , on June 10 2010 , which addressed the parties ' rights and obligations should the
second phase of environmental testing disclose actual contamination.
That Amendment provided in pertinent part as follows:
If the cost of the Remediation is $35 000. 00 or less , the Remediation shall be
completed at Seller s sole cost and expense prior to Closing. If the cost of the
Remediation exceeds the sum of $35 000. , then Purchaser shall have the
option at its sole discretion of terminating the Contract or contributing to the
amount required to complete the Remediation in excess of $35 000. 00 and in
such event , the Remediation shall be completed. If the Remediation exceeds
$35 000. 00 and the Purchaser gives notice of its intent to terminate the
Contract , then Seller , within five (5) days of receipt of Purchaser s notice to
terminate , shall have the option of performing the remediation at Seller s sole
cost and expense.
The defendants assert that since the second phase of environmental investigation
revealed environmental contamination with a remediation cost that well exceeded the
threshold $35 000 , they had the right to terminate the contracts , ifthe plaintiffs would not
remediate the propert. The defendants argue that despite negotiations with the
plaintiffs/sellers regarding the resolution of the remediation issues , no agreement was
reached. Accordingly, pursuant to the terms of the Amendment, on October 23 , 2009,
purchasers exercised their unequivocal , unilateral right to terminate the Contract as the
costs to remediate exceeded $35 000. The notice to terminate letter was received by
plaintiffs ' attorneys , Abrams, on the same day, as evidenced by their letter in reply of
same date. Defendants aver that since the plaintiffs/sellers did not remediate or commit
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BAY ASSOCIATES OF LAWRENCE, LTD., et al
Index no. 004491/10
in writing to remediate at their sole cost, within five days after receiving the notice of
intent to terminate, the contracts automatically terminated on October 28 2009 , at which
time their down payment should have been returned.
The plaintiffs oppose , asserting that the defendants ' notice to terminate was
disingenuous , as the defendants continued to work with the plaintiffs regarding the
outstanding title issues and there was no issue regarding remediation, as the defendants
agreed to accept a $100 000 credit toward the purchase price. Plaintiffs argue that, despite
the purorted notice of termination , the parties continued to proceed towards closing and
thus there was a recision of the purported termination and the defendants should be
equitably estopped from asserting the contracts were terminated.
In reply, the defendants argue that the clear terms ofthe contracts and amendment
provided them with the absolute right to terminate , which could be overcome only by the
plaintiffs committing in writing to remediate the propert at their sole costs and expense.
Defendants argue that , contrary to the plaintiffs ' assertions , there was no agreement to
remediate. Defendants argue that the issue regarding indemnification for the
environmental contamination had not been resolved , as any amendments to the contract
had to be in writing, which was not done with regards to the remediation issue.
Defendants assert that while the issue of their receiving a credit toward the purchase
price was discussed , it was conditioned on the plaintiffs giving them a written indemnity
agreement or providing insurance regarding the environmental conditions , which was
never actually agreed to by the plaintiffs.
In their reply, defendants also reiterate their contention that they are entitled to
summar judgment against the plaintiffs as they properly exercised their absolute right to
terminate when they sent the notice of intent to terminate , which the plaintiffs failed to
abate by committing to remediation at their sole cost and expense.
With regards to the branch of their motion against the third part defendant
Abrams , the defendants assert that the third part defendants , breached their duty as
escrowee , in failng to return the down payment to defendants after the contracts were
terminated and in failng to advise the sellers in writing of the purchasers ' demand for the
return of the down payment.
Abrams opposed and cross moved for summar judgment , averring that the
defendants ' contention that they failed to provide written notice to plaintiffs is without
[* 9]
BAY ASSOCIATES OF LAWRENCE, LTD., et al
Index no. 004491/10
merit as the defendants themselves served written notice on the plaintiffs demanding the
return ofthe down payment. Further, Abrams asserts that pursuant to the terms of the
contracts , in paricular section 2. 06(a), the escrowee for any other reason acting in good
faith can determine not to release the down payment to either par. Abrams asserts that it
did not release the down payment to the defendants , at the direction of their clients , and
based upon its good faith belief that the defendants breached the contracts.
Section 2. 06 (a) of the Contracts of Sale ,
provides as follows:
If for any reason the Closing does not occur and either part makes a
written demand upon Escrowee for payment of such amount , Escrowee
shall give written notice to the other par of such demand. If Escrowee
does not receive a written objection from the other par to the proposed
payment within 10 business days after the giving of such notice , Escrowee
is hereby authorized to make such payment. If Escrowee does receive
such written objection within such 10 day period or if for any other
reason Escrowee in good faitbshall elect not to make such payment
Escrowee shall continue to hold such amount until otherwise directed
by written instructions from the parties to this contract or a final or
non-appealable judgment of a court" (emphasis supplied).
Abrams also contends that in accordance with the aforenoted section of the
contracts and pursuant to section 2. 06(b), it as Escrowee , cannot be held liable to either
part, " for any act or omission on its par unless taken or suffered in bad faith , wilful
disregard of this contract or involving gross negligence.
Section 2. 06(b) of the Contracts of Sale , provides as follows:
The parties acknowledge that Escrowee is acting solely as a stakeholder
at their request and for their convenience , that the duties of Escrowee
hereunder are purely ministerial in nature and shall be expressly limited to
the safekeeping and disposition of the Down payment in accordance with
the provisions of this contract , that Escrowee shall not be deemed to be
the agent of either of the parties , and that Escrowee shall not be liable
to either of the parties for any act or omission on its part unless
taken or suffered in bad faith, in wilful disregard of this contract or
involving gross negligence. Seller and Purchaser shall jointly and
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BAY ASSOCIATES OF LAWRENCE, LTD., et al
Index no. 004491/10
severally indemnify and hold Escrowee harless from and against all
costs, claims and expenses , including reasonable attorneys ' fees , incurred
in connection with the performance of Escrowee s duties hereunder
except with respect to actions or omissions taken or suffered by Escrowee
in bad faith , in wilful disregard of this contract or involving gross
negligence on the part of Escrowee " (emphasis supplied).
Abrams argues that since there is no allegation in the third par complaint that it
acted in either bad faith , wilful disregard of the contracts or was grossly negligent
Sec. 06 compels the dismissal ofthe third part complaint.
Legal Standards
Summary Judgment
On a motion for summar judgment pursuant to CPLR ~ 3212 , the proponent must
showing of entitlement to judgment as a matter of law , tendering
SheppardMoblev v. KingJ AD3d 70 , 74 (2
citing
affd as mod
Alvarez v. Prospect Hosp. 68 NY2d 320
Winegrad v. New York Univ. Med
Ctr 64 NY2d851 , 853 (1985). "
showing requires a
denial of the motion , regardless of the sufficiency of the opposing papers. Sheppardsupra
Alvarez v. Prospect Hosp supra Winegrad v. New York
Univ. Med Ctr. supra . Once the movant' s burden is met , the burden shifts to the opposing
make a
prima facia
sufficient evidence to demonstrate the absence of any material issues of fact."
, 4 NY3d 627 (2005),
Dept. 2004),
324 (1986);
Failure to make such
Moblev v. King.
part to
prima facia
at 74;
Alvarez v. Prospect Hosp supra
establishthe existence of a material issue of fact.
at 324. The evidence presented by the opponent of summar judgement must be accepted
as tre and must be given the benefit of every reasonable inference. See Demishick v.
Community Housing Management Corp 34 AD3d 518 521 (2 Dept. 2006)
citng Secof
v. Greens Condominium 158 AD2d 591 (2nd Dept. 1990).
Dismissal
A complaint may be dismissed based upon documentary evidence , pursuant to CPLR
3211(a)(1), only if the factual allegations contained therein are definitively contradicted
Yew
by the evidence submitted or a defense is conclusively established thereby (see
Prospect. LLC v. Szulman. 305 AD2d 588 (2
Sta-Bright Services. Inc.
Sutton 17 AD3d 570 (2 Dept. 2005). " On a motion to dismiss the complaint pursuant
Dept. 2003);
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Index no. 004491/10
BAY ASSOCIATES OF LAWRENCE, LTD., et al
to CPLR ~ 3211(a)(7) for failure to state a cause of action , the court must afford the
pleading a liberal construction , accept all facts as alleged in the pleading to be true
accord the plaintiff the benefit of every possible inference , and determine only whether
the facts as alleged fit within any cognizable legal theory (quotations omitted). East
Hampton Union Free School Dist.. v. Sand pebble Builders. Inc. 66 AD3d 122 , 125
Brevtman v. Olinville Realty. LLC.
aff'
Leon v.
304 (2
Iv dism.
54 AD3d 703 303Smith v. Meridian Technologies. Inc. 52 AD3d 685
Martinez
686 (2 Dept. 2008). " Thus , a motion to dismiss made pursuant to CPLR ~ 321 I (a)(7)
wil fail if, taking all facts alleged as true and according them every possible inference
favorable to the plaintiff, the complaint states in some recognizable form any cause of
action known to our law (quotations omitted). East Hampton Union Free School Dist..
Inc. supra at 125
Shava B. Pacific. LLC v. Wilson.
Leon v.
Dicker. LLP 38 AD3d 34 38 (2
Fisher v. DiPietro 54 AD3d 892 , 894 (2 Dept. 2008;
Martinez supra at 87Clement v. Delanev Realtv Corp. 45 AD3d 519 , 521(2nd Dept. 2007). It must be denied
if the factual allegations contained in the complaint constitute a cause of action
232
Gurrenheimer v. Ginzburg
Owners Corp. v. Jennifer Realty Co. 98 NY2d 144 (2002). When entertaining such an
application , the Court must liberally construe the pleading. In so doing, the Cour must
accept the facts alleged as true and accord to the plaintiff every favorable inference which
Leon v. Martinez supra . However, the Court wil not presume
as true bare legal conclusions and factual claims which are flatly contradicted by the
Palazzolo v. Herrick. Feinstein 298 AD. 2d 372 (2 Dept. 2002).
quoting
16 NY3d 775 (2011),
Dept 2009),
Dept. 2008),
citing
12 NY3d 378 (2009),
84 NY2d 83, 87 (1994);
quoting
v. Sandpebble Builders.
Dept. 2006);
Elser. Moskowitz. Edelman
88;
43 NY2d 268 (1977);
cognizable at law.
511 u-
may be drawn therefrom.
evidence.
Breach of Contract
To establish a cause of action for breach of contract , one must demonstrate: I) the
existence of a contract between the parties , 2) consideration , 3) performance by the
plaintiff, 4) breach by the defendant
Furia
Furia
AD2d 694 695 (2
JP Morgan Chase v. JH Electric
69 AD3d 802 (2
Elisa Drier Reporting Corp.. v. Global Naps
Networks. Inc. 84 AD3d 122 127 (2 Dept. 2011).
, and 5) damages resulting from the breach.
116
Dept. 1986).
Dept. 2010);
See also
see also
When parties set down their agreement in a clear , complete document , their
writing shouid be enforced according to its terms.
AD3d 864 (2
Dept. 2006). A contract wil
Henrich v. Phazar Antenna Corp. , 33
be interpreted
in accordance with the intent
,"
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Index no. 004491/10
Greenfield v. Philes
of the parties as expressed in the language of the agreement.
Records. Inc. 98 NY2d 562 569 (2002). The best evidence of what parties to a written
Greenfeld supra
quoting
Col 79 NY2d 1016 , 1018 (1992). A written agreement that is complete
agreement intend is what they say in their writing.
at 569
Siamow v. Del
clear and unambiguous on its face must be enforced according to the language of the
South Road Assoc.. LLC v. International
Business Machines Corp.. 4 NY3d 272 , 277 (2005) WW Assoc.. Inc. v. Giacontieri
NY2d 157 , 162 (1990). The interpretation of an unambiguous contract provision is a
supra
WW Assoc.. Inc. supra at 162. On a
claim of equitable estoppel (tJhe elements of estoppel are , with respect to the part
estopped , (1) conduct which amount to a false representation or concealment of material
agreement and the plain meaning of its terms.
matter for the court.
facts; ' (2)
Greenfeld.
at 569;
intention that such conduct wil be acted upon by
knowledge of the real facts
the other part;
and (3)
First Union Nat'l Bank v. Tecklenburg 2 AD3d 575 , 577
(2nd Dept. 2003)).
Courts ' determination
The defendants/third par plaintiffs have established their entitlement to summary
judgment as against the plaintiffs which has not been rebutted. Under the clear terms of
the contracts and the amendment to the contracts the defendants/buyers had an absolute
and unequivocally right to unilaterally cancel the contract based upon the environmental
contingency clause contained in the contracts and written amendment, as the cost of
remediation of the environmental contamination exceeded $35 000. The
defendants/buyers exercised that right when they gave notice of their intention to
terminate to the sellers. Thereafter, it was up to the plaintiffs/sellers to determine if the
sale should go forward by, within five days , agreeing to conduct the remediation of the
environmental contamination at their sole cost and expense , which they did not do.
Despite the paries continuing negotiations and efforts to clear title , there was
no agreement regarding the remediation and , thus , no recission of the notice of
termination. Nor have the plaintiffs ' established that defendants should be estopped from
terminating the contract based upon their actions after sending the notice of termination
letter. By their attorneys ' letter of October 23 2009 , the defendants clearly put the
plaintiffs on notice that they intended to terminate , if the plaintiffs did not agree to
remediate the propert. This was further confirmed by the defendants ' letter of
November 16 2009 demanding return of the down payment.
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Accordingly, based upon the clear, unequivocal terms of the contracts and
amendment , the buyers ' termination of the contacts became effective on October 28
ADI Great Neck, LLC v. Commander Oil Corp. 81 AD2d 759 760 (2
Chana E. Devorah Realty, Inc., v. Degliuomoini 25 Misc 3d 1209(A)
(Sup Ct. Kings County, Oct 5 , 2009) and the defendants were entitled to the return of
their down payment at that time.
2009. See
Dept. 2011);
As the down payment was not retued to the defendants when the contracts were
terminated , they are entitled to statutory interest on the amount they were due for the
return of the down payment from October 28 2009 , the date the termination became
Chana E. Devorah Realty, Inc. supra at 38. The
defendants , pursuant to the terms of the contracts , are entitled to a vendees ' lien against
both parcels.
effective. (See CPLR ~ 5011;
As to the third par defendants ' motion to dismiss the third par complaint, the
contracts clearly provided that third part defendant , Abrams , as Escrowee , could not be
held liable to either par for its acts or omissions unless taken or suffered in bad faith
in wilful disregard of the contracts or gross negligence.
The third part defendant is correct that the failure of the third par plaintiffs to
allege that its acts or omissions were the result of bad faith , wilful disregard of the
contracts or gross negligence is fatal. Accordingly the third par defendant's motion to
dismiss the third par
I:ranted Therefore it is hereby
complaint is
ORDERED , that the branch of defendants/third part plaintiffs ' motion for summary
dismissing the plaintifr s complaint as against it and granting summar judgment on their
thee counterclaims against
granted , and the Clerk is directed to enter
the plaintiffs is
judgment accordingly, and it is further
ORDERED , that defendants/third par plaintiffs are awarded judgment against
plaintiffs Bay Associates and Rason in the amount of $542 000 , plus interest at the
statutory rate from October 28, 2009 , plus costs and disbursements as taxed by the Clerk
and the Clerk is directed to enter judgment accordingly, and it is further
ORDERED , that the cross-motion of third part
complaint granted and the third part complaint
prejudice.
, is
to dismiss the third par
dismissed in its entirety without
defendant
is
So ordered.
Dated
;APR 16 2012
N'TER
APR 1 9 2012
8AU
COUNTY
COUNT CLERK'
Of FtC I
