104 E. 30th St. LLC v Munshi Bishan Singh Kochhar Found., Inc.

104 E. 30th St. LLC v Munshi Bishan Singh Kochhar Found., Inc. 2016 NY Slip Op 07086 Decided on October 27, 2016 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 October 27, 2016
Friedman, J.P., Andrias, Moskowitz, Gische, Gesmer, JJ.
2054 151167/15

[*1]104 East 30th Street LLC, Plaintiff-Respondent,

v

Munshi Bishan Singh Kochhar Foundation, Inc., Defendant-Appellant.

Newman Law, P.C., Cedarhurst (Evan M. Newman of counsel), for appellant.

The Law Office of Russell D. Morris PLLC, New York (Russell D. Morris of counsel), for respondent.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about October 14, 2015, which, to the extent appealed from, denied defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The complaint states a cause of action for breach of a contract for the sale of real property, and no documentary evidence in the record directly refutes its allegations (see Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Stuart Lipsky, P.C. v Price , 215 AD2d 102 [1st Dept 1995]). The apparent inconsistency of certain sections of the contract presents an ambiguity; it does not foreclose plaintiff's claim for specific performance. Section 6.6 of the contract appears to limit plaintiff's remedy for a material breach by defendant to return of the deposit, "except . . . as may be expressly provided to survive the Closing or earlier termination of this Contract." However, section 10.2 expressly permits plaintiff to seek, in the event of a material breach by defendant, either termination of the contract and return of the deposit or specific performance. Moreover, the record does not conclusively establish whether defendant's breach was material or immaterial. Nor does the record establish that plaintiff's actions constituted a waiver of a condition precedent to closing.

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 27, 2016

CLERK