Matter of Brownlee

[*1] Matter of Brownlee 2007 NY Slip Op 52078(U) [17 Misc 3d 1119(A)] Decided on October 25, 2007 Supreme Court, Queens County Thomas, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 25, 2007
Supreme Court, Queens County

In the Matter of the Application of Sheila R. Brownlee as Guardian of the Person and Property Frankie Lee Brownlee to sell certain real property belonging to the said Person in Need of a Guardian



22611/05



Attorney of record are:

Theodore G. Fodera of 67-18F 195th Lane, Fresh Meadows, NY 11365

Stephen S. Weintraub of 80-30 164th Street, Hillcrest Estates, NY 11432

Charles J. Thomas, J.

Frankee Lee Brownlee was adjudicated an Incapacitated Person by this Court. Mr. Brownlee owns several pieces of property, one of which was a two (2) story residential building located at 145-67 Farmers Boulevard, Jamaica, New York. Sheila Brownlee, the Guardian, moved for permission to sell the Farmers Blvd. Property and submitted, for the Court's approval, a contract of sale for the property between Sheila Brownlee, as guardian of Frankie Lee Brownlee and Olawade Omotosho for a purchase price of $300,000.00. A down payment of $10,000.00 had been made by the prospective purchaser.

Pursuant to this Court's custom, the guardian was directed to advertise the property for auction to be conducted on December 20, 2006.

On that date an auction was held. Country Plaza Homes, Inc. (Hereinafter "Country Plaza") was the successful bidder; having bid $310,000.00, $10,000.00 over the proposed contract price. The property was sold "as is" with the "closing to take place within thirty (30) days" of the auction with "10% of the purchase price" paid to the guardian as a down payment.

On January 17, 2007, "Country Plaza" entered into a contract with Sheila Brownlee as Guardian for a price of $310,000.00.Despite the requirement that "Country Plaza" close within thirty (30) days, it did not do so, claiming problems with the title and condition of the property. Approximately three to four months later the City of New York demolished the second floor of the premises, the result of two (2) unsafe building actions, filed against the property prior to the auction. (One application was filed on February 23, 1994, the second on February 16, 2005). [*2]

On April 17, 2007, four months after the auction, Steven Weintraub, Esq., the attorney for "Country Plaza" notified Abraham Katz, Esq., attorney for the guardian that partial demolition of the property had taken place.

"Country Plaza" now seeks a reduction of the price because of the diminution of the value of the property due to the change in the condition of the premises.

After consideration of the moving and opposition papers, the motion is denied.

Property sold at auction by the Court is subject to the terms set by the Court at the time of the auction. The terms set forth by the Court at the auction were clear.

In its reply, to the opposition by the guardian, "Country Plaza" in support of its claim, relies upon an Affidavit from Jennifer Gallinaro, an officer of a title company, which states that Country Plaza applied for a title report on or about January 23, 2007. At that point "Country Plaza", was already in default of the terms of sale, having not closed within the required thirty (30) day period.The existence of a mortgage, as well as the tax liens, would have resulted only in the questionable amounts being held in escrow and would not have prevented the closing. Had "Country Plaza" acted promptly, it would have known about the liens before January 23, 2007 and they could have closed within the required thirty (30) day period.

Having failed to comply with this Court's terms, "Country Plaza" is in default and has breached the contract. The only remaining issue is the assessment of damages.

The basis for assessment of damages against a vendee for breach of his agreement to purchase real property is compensation for the damages incurred by the vendor. Such damages are usually limited to those directly incurred by the breach usually ascertained by determining results. The difference between the agreed upon price and the market value after the breach. Here, the market value at the time of the auction was $310,000.00. Defendant argues that the property now is only worth $185,000.00, leaving a deficit of $125,000.00. However, as the condition of the auction did not otherwise specify terms for the assessment of damages the Court will limit the damages to the forfeiture of "Country Plaza's" down payment.

The guardian and Country Plaza are directed to close for the original purchase price within ten (10) days of service of a copy of this order upon defendant, otherwise, the down payment is forfeited and the guardian shall re-advertise the property as previously directed for an auction to be held on December 4, 2007.

CHARLES J. THOMAS, J.S.C.