97th St. Holdings, LLC v East Side Tenants Corp.

97TH St. Holdings, LLC v East Side Tenants Corp. 2011 NY Slip Op 01698 Decided on March 8, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 8, 2011
Tom, J.P., Sweeny, Renwick, Freedman, Manzanet-Daniels, JJ.
4447 102105/09

[*1]97TH Street Holdings, LLC, Plaintiff-Appellant,

v

East Side Tenants Corporation, Defendant-Respondent, Nicholas Toumbekis, etc., Defendant.




Shapiro & Shapiro, LLP, Brooklyn (Jeanne M. Weisneck of
counsel), for appellant.
Hartman & Craven LLP, New York (Victor M. Metsch of
counsel), for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 28, 2010, which, insofar as appealed from, as limited by the briefs, granted defendant-seller East Side Tenants Corporation's (East Side) motion for summary judgment dismissing the complaint, granted East Side summary judgment on its first and second counterclaims, declared that plaintiff-buyer 97th Street Holdings, LLC (97 LLC) was in breach of the parties' contract of sale and that East Side was entitled to 97 LLC's $190,000 down payment, and cancelled 97 LLC's notice of pendency against the property, unanimously affirmed, with costs.

The parties, sophisticated business people represented by counsel at the time they entered the contract of sale, did not condition 97 LLC's performance under the contract upon East Side's procurement of a waiver of liability from an adjoining landowner as to alleged damage caused by the structurally unsound condition of the building on the property to be sold. Nor did the parties' agreement obligate East Side to obtain a consent from the neighboring owner to 97 LLC's proposed construction along the party wall (see generally Real Property Actions and Procedure Law § 881). To impute such obligations from generalized language found in the contract's further assurances clause (paragraph 28[g]), as 97 LLC advocates, would amount to a reformation of the contract without basis (see generally Chimart Assoc. v Paul, 66 NY2d 570, 574 [1986]). The record demonstrates that East Side fully disclosed the condition of the property pre-contract signing, and afforded 97 LLC a sufficient due diligence period to make appropriate inquiries necessitated by its proposed construction plans. 97 LLC has not shown that East Side breached any material term under the contract of sale, and 97 LLC's own unjustified failure to close by a law date reasonably set by East Side constituted a material breach warranting forfeiture of its down payment (see Maxton Bldrs., Inc. v Lo Galbo, 113 AD2d 923 [1985], affd 68 NY2d 373 [1986]). 97 LLC's unsubstantiated argument that potential litigation concerns had affected the marketability of the subject property, and thus excused it from its obligations under the agreement, is unavailing (see e.g. National Land & Bldg. Corp. v Kazim, 25 AD3d 513, 514 [2006]; Argent Mtge. Co., LLC v Leveau, 46 AD3d 727 [2007]). [*2]
97 LLC failed to proffer evidence of a title defect that might excuse its non-performance under the contract (see generally Regan v Lanze, 40 NY2d 475 [1976]).

The parties' requests for sanctions are denied.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2011

CLERK