Bay Assoc. of Lawrnce, Ltd. v John P. Picone, Inc.

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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 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] 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 [* 2] BAY ASSOCIATES OF LAWRENCE, LTD. , et al 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. [* 3] BAY ASSOCIATES OF LAWRENCE, LTD., et al 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 [* 4] BAY ASSOCIATES OF LAWRENCE, LTD., et al 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 [* 5] BAY ASSOCIATES OF LAWRENCE , LTD., et al 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. [* 6] BAY ASSOCIATES OF LAWRENCE, LTD. , et al 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. [* 7] BAY ASSOCIATES OF LAWRENCE , LTD. , et al 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 [* 8] 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 [* 10] 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); [* 11] 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 ," [* 12] BAY ASSOCIATES OF LAWRENCE, LTD. , et al 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. [* 13] BAY ASSOCIATES OF LAWRENCE, LTD. , et al Index no. 004491/10 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

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