Pesa v Yoma Dev. Group, Inc.
Annotate this CaseThis case arose when defendant agreed in three separate contracts to sell three properties to plaintiffs. At issue was whether a buyer in a damages suit like this one must show that it was ready, willing, and able to close the transaction i.e., that but for the seller's repudiation, the transaction could and would have closed. The court held that in a case alleging that a seller has repudiated a contract to sell real property, the buyers must prove that they were ready, willing, and able to close the transaction. Here, the buyers did submit evidence of their financial condition, but that evidence was not conclusive of the issue. Therefore, whether the buyers were ready, willing, and able to close presented an issue of fact and the buyers' motion for summary judgment should have been denied. The court also held that the courts below erred in deciding as a matter of law that the seller repudiated the contracts by transferring the properties in question. The court held, however, that the courts below were correct in denying the seller's cross-motion for summary judgment.
Decided on February 14, 2013
No. 3
[*1]In the Matter of Brian Ward, Respondent,
v
City of Long Beach, Appellant.
Robert M. Agostisi, for appellant.
Louis D. Stober, Jr., for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs.
Petitioner, a lieutenant in the City of Long Beach Fire Department, claimed to have suffered a work-related injury in October 2003. He filed for disability retirement with the [*2]State pursuant to Retirement and Social Security Law § 363-c. The State Comptroller granted that application and shortly thereafter petitioner retired from active duty. In May 2008, petitioner sought supplemental disability pension benefits from the City pursuant to General Municipal Law § 207-a. The Fire Commissioner denied the request, without explanation, and that determination was later upheld on appeal by the City's Corporation Counsel. Petitioner brought an article 78 proceeding, and Supreme Court annulled respondent's determination and directed respondent to pay petitioner the subject benefits. The Appellate Division affirmed.
In reviewing the City's determination - one that was made without a hearing - the issue is whether the action taken had a "rational basis" and was not "arbitrary and capricious" (see e.g. Matter of Wooley, v New York State Dept. Of Correctional Servs., 15 NY3d 275, 280 [2010]). "An action is arbitrary and capricious if it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable (id.).
The City's denial was based on statements made by petitioner's estranged wife in the midst of a divorce and Corporation Counsel's personal observations of petitioner. Petitioner was given no notice of the allegations nor an opportunity to respond to them, despite the substantial contrary record evidence, including medical findings, that led to the approval of petitioner's application for disability benefits from the State. Under these circumstances, we agree with the Appellate Division that the City's justification for its denial lacks the requisite rational basis and is, therefore, arbitrary and capricious.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs, in a memorandum. Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur. Judge Rivera took no part.
Decided February 14, 2013
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