Nassau Beekman LLC v Ann/Nassau Realty LLC

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Nassau Beekman LLC v Ann/Nassau Realty LLC 2012 NY Slip Op 32476(U) September 13, 2012 Sup Ct, NY County Docket Number: 116402/2008 Judge: Saliann Scarpulla 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART Justice ". r 9 Index Number : 116402/2008 NASSAU BEEKMAN INDEX NO. V8 MOTION DATE ANN/NASSAU REALTY MOTION SEQ. NO. Sequence Number : 002 - SUMMARY JUDGME~.JT , were reau UII uIIm ,,,dtlon tdfor Notlce of MotlonlOrder to Show Cause - Affldavlts - Exhlbita Answering Affldavlts - Exhlblts The followlng papers, numbered Ito IN O W INo(a). IN O W . Rsplylng Affldavlts Upon the foregolng papers, It Is ordered that thi nlotirjn arid cross-motion are decided in accordarla with accompanying memorandum decision 2 SALIANN 1. CHECK ONE: ..................................................................... 0 CASE DISPOSED 2. CHECK AS APPROPRIATE: .......................... u GRANTED 3. CHECK IF APPROPRIATE: .MOTION I : S ................................................ ~ E T T L ORDER E DO NOT POST I ARPULLA ON-FINAL DISPOSITION DENIED [JGRANTED IN PART 0OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT CIREFERENCE [* 2] Plaintiff, Index No. : 116402/2008 Submission Date: 05/09/20 12 - against- ANN/NASSAU REALTY LLC, Defendant. X r________-_____-__r__l____________r_____------------------~"------ For Plaintiffs: Claude Castro & Associates, PLLC 355 Lexington Ave., Suite 1400 New York, NY 10017 For Defendant: Greenberg Traurig, LLP 200 Park Ave., 3Sh Floor New York, NY 10166 Papers considered in revjew of this motion for partial summary judgment and cross motion to reargue: Noting of Motion . . . . . . . . . . . . . 1 Aff of Support. . . . . . . . . . . . . . . 2 Aff in Limited Opp . . . . . . . . . . . . 3 Notice of Cross Motion . . . . . . . . 4 Aff i Opp . . . . . . . . . . . . . . . . . . . 5 n Mem of Law. . . . . . . . . . . . . . . . . 6 Reply Aff . . . . . . . . . . . . . . . . . . . . 7 4 6 40 7 'Lp r, HON. SALIANN SCARPUI,LA, J.: '$?a& 4% ' 6 In this action to recover damages from the unconsummated sale of real property, %& defendant AndNassau Realty LLC ("ANR') moves for partial summary judgment on its counterclaim to retain the down payment paid by plaintiff Nassau Beekman LLC ('Nassau Beekman") in connection with its attempt to purchase real property from ANR. On May 9,2012, on the record, the Court denied Nassau Beekman's cross motion for 1 cb e TQp popofi. +. 3. /r [* 3] leave to reargue the Court s August 2,20 1 1 Decision and Order dismissing Nassau Beelunan s complaint, and denying Nassau Beekman s motion for summary judgment. In a Contract of Sale dated August 14, 2007 (the Contract of Sale ), Nassau Beekman agreed to buy, and ANR agreed to sell, real property located at 21 Ann Street and 109, 1 1 1 and 1 13 Nassau Street, New York, NY ( the property ) for a price of $56,700,000, later reduced to $50,030,000. Nassau Beekman placed an initial down payment of $5,000,000 with ANR for the property, Pursuant to Section 12.04 of the Contract of Sale, the parties agreed that retention of the Down Payment as liquidated damages was A M s %oleremedy if Nassau Beekman defaulted. At the time they executed the Contract of Sale, the parties also entered into a separate, handwritten agreement (the Development Rights Agreement ) in which ANR represented that it intended to purchase certain development rights attributable to 2 1 Ann Street, and ANR agreed to assign these development rights to Nassau Beekmd. In the initial Contract of Sale, the closing date for the sale of the property was scheduled for August 30, 2007, time of the essence for Purchaser to perform its obligations by no later than October 10,2007. The closing date was rescheduled multiple times, through written amendments to the Contract of Sale, and the down payment was increased to a total of $9,000,000. The last closing date memorialized in writing was September 25, 2008. 2 [* 4] On September 25, 2008 ANR appeared at the closing and, as memorialized by a court reporter, purported to tender the documents it was required to tender under the Contract of Sale. Nassau Beekman, however, failed to appear at the September 25,2008 closing. On November 6,2008, ANR notified Nassau Beekman in writing of the termination of the Contract of Sale because of Nassau Beekman s breach, and of A M s election to retain the $9,000,000 down payment as liquidated damages. By letter dated November 13,2008, Nassau Beekman claimed that the parties orally agreed to an extension of the closing date, that ANR was not ready, willing and able to close on September 25, 2008, and that ANR s termination of the Contract of Sale was improper. Nassau Beekman commenced this action in December, 2008 seeking a declaration that ANI3 wrongfully terminated the Contract of Sale and that, as a result, Nassau Beekman is entitled to the return of its $9,000,000 down payment and additional damages resulting from the <reach. In its answer, ANR asserts a counterclaim, in which it seeks to retain Nassau Beekrnan s $9,000,000 deposit as liquidated damages. Thereafter, the parties cross moved for summary judgment. On August 2,20 11, the Court denied Nassau Beekman s motion, and granted A M s motion insofar as it sought dismissal of Nassau Beekrnan s complaint (the 201 1 order ). See Nassau Beekman LLC v. AndNassau Realty LLC, 201 1 NY Slip Op 321 19U, at *5 (Sup. Ct. NY Co. 20 11). The Court, however, denied ANR summary judgment on its counterclaiin to retain the down payment. The Court ruled that ANR s failure to include the documents 3 [* 5] listed in the closing transcript precluded summary judgment on its counterclaim to retain the down payment. The Court stated that [tlhese documents would prove that ANR did perform, or at least had the ability to perform, under the Contract of Sale . . . . Thus, the Court denied the motion in part, with leave to renew upon submission of these documents. ANR now renews its motion for partial summary judgment on its counterclaim to retain the down payment. In its motion, ANR has attached the documents listed in the closing transcript. In opposition, Nassau Beekman argues that ANR was not ready, willing and able to close on September 25, 2008, and alleges that there are issues of fact as to whether the parties made an oral agreement to adjourn the closing. Discussion A movant seeking summary judgment must make aprima facie showing of entitlement to judgement as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 85 1, 853 (1 985). Once a showing has been made, the burden shifts to the opposing party, who must then demonstrate the existence of a triable issue of fact. AZvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. City ofNew York, 49 N.Y.2d 557 (1980). Here, ANR has made aprima facie showing that it was ready, willing and able to close on September 25, 2008. In its 201 1 order, the Court ruled that the documents listed in the closing transcript would establish that ANR made a valid tender at the closing, and 4 [* 6] ANR has now provided these documents, the validity of which Nassau Beekman does not challenge. Nassau Beekman maintains that A M s motion is insufficient because ANR failed to present copies of checks payable to the City and State of New York for the applicable transfer taxes, the satisfaction of mortgage for the $36,000,000 mortgage that was on the property, copies of ANR s operating agreement to establish the authority of the persons executing the closing documents, and an updated title report confirming the status of title through the date of closing. With the exception of the copies of the transfer tax checks, ANR was not required to provide these documents under the Contract of Sale. Nassau Beekman fails to raise a question of fact, however. The fact that checks for the transfer taxes were not submitted is not sufficient to defeat this motion for summary judgment, especially because Nassau Beekman has failed to present any L evidence that ANR was unable to pay the transfer taxes at the closing. Thus, Nassau Beekman has failed to raise an issue of fact, and the Court grants ANR summary judgment on its counterdaim to retain the $9,000,000 down payment. See Vision Enters., LLCv. I l l E. Shore, LLC, 92 A.D.3d 868, 870 (2d Dept. 2012). In accordance with the foregoing, it is hereby ORDERED that the defendant A d N a s s a u Realty LLC s motion for partial summary judgment on its counterclaim to retain the $9,000,000 against plaintiff Nassau Beekman LLC is granted; and it further 5 [* 7] ORDERED that plaintiff Nassau Beekman LLC s cross motion to reargue is denied; and it is further - ORDERED that defendant AndNassau Realty LLC is directed to settle judgment accordingly. This constitutes the decision and order of the Court. Dated: New York, New York September 13,2012 ENTER: 6

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