Matter of Trupin

[*1] Matter of Trupin 2008 NY Slip Op 52494(U) [21 Misc 3d 1144(A)] Decided on December 12, 2008 Sur Ct, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2008
Sur Ct, Bronx County

In the Matter of the Estate of Edith Trupin, Deceased.



565-P/05



Michael M. Lippman, Esq., for co-executors, Richard Trupin and Ann Beth Trupin

Sanford B. Glatzer & Associates, (Sanford B. Glatzer, Esq., of counsel) for respondents, Galaxy of New York, Inc., and GBS Associates, Inc.

Lee L. Holzman, J.

In this SCPA 1809 proceeding, the executors move for summary judgment disallowing the claims of the respondents, two closely- held corporations, for the return of the $60,000 downpayment ($50,000 for one parcel and $10,000 for the other) that they made pursuant to two separate contracts of sale for adjacent parcels of real property.

In the beginning of August, 2006, the respondent Galaxy of New York Inc. delivered to the petitioners a signed contract to purchase Block 5730, Lot 814, Bronx County, for $925,000 together with a downpayment of $50,000. Simultaneously the respondent GBS Associates Inc. delivered to the petitioners a signed contract to purchase Block 5730, Lot 811 for $900,000 together with a downpayment of $10,000. With respect to the issues raised herein, the pertinent terms of the contracts, the facts and circumstances surrounding their execution and the events thereafter are the same as to both contracts. Both contracts contain a liquidated damage clause, providing that the seller's retention of the downpayment constitutes "a fair and a reasonable amount of damages" and a "time of the essence" clause, providing that the purchaser agrees to close by November 17, 2006, and the seller has the right to an adjournment, "but in no event later than December 31, 2006, time of the essence." Paragraph 34 of the rider to each contract, provides that "there is deed restriction which allows building only one house." Lastly, paragraph 28 of each contract contains a standard merger clause which precludes any party from "relying upon any statement made by anyone else that is not set forth in this contract."

The correspondence between the parties indicates that at some date after August 18, 2006, and more likely closer to September 12, 2006, the petitioners signed the contracts and returned them to the respondents. It is also not disputed that before the petitioners signed the contracts and returned the executed contracts to the respondents, the address of the property on each contract was changed from 2775 to 2755 Netherland Avenue. The respondents submitted a [*2]September 12, 2006 letter from their attorney to them advising them that the sellers had signed the contracts, but they should confirm that "the property is at 2755 Netherland Avenue and not 2775 Netherland" and they should note that "time is of the essence for November 17, 2006." In January 2007, without ever having requested a closing date, the respondents filed with the petitioners a notice of claim demanding a refund of the downpayments.

The petitioners contend that the respondents' failure and refusal to close in accordance with the terms of the contracts entitles them to retain the downpayments as liquidated damages. The respondents oppose the motion on the following grounds: (1) notwithstanding that each of the contract always contained the correct lot and block numbers for the real property and an accurate metes and bound description, they were confused as to which parcels they were purchasing because, between the time that they signed the contracts and the time that the petitioners signed and returned the contracts to them, the address of the parcels was changed on the contracts from 2775 to 2755 Riverdale Avenue;(2) the broker, the seller's agent, told them that they could "possibly" build town houses or three one-family dwellings on the two lots; and, (3) the seller's might not have been able to convey the property because record title was in the name of the decedent's predeceased spouse.

Summary judgment will be granted only where no material issue of fact exists (Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]; Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Assoc. Fur Mfrs., Inc., 46 NY2d 1065 [1979]). When the movant has made a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (Westhill Exports, Ltd. v Pope, 12 NY2d 491 [1963]). The papers submitted in the summary judgment application are always scrutinized in a light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976 [1993]).

Here, the court accepts the respondents' allegation that the address of the property to be sold was changed from 2775 to 2755 Netherland Avenue between the time that they signed the contracts and the time that the petitioners signed and returned the contracts to them. Although the person who submitted affidavits on behalf of the respondents avers that he is an experienced developer, he contends that the error in the address of the premises, "whether inadvertent or not created confusion as to what properties were being conveyed." However, no other factual allegations are presented to support this conclusion. The affiant fails to elaborate on how this error caused any confusion on his part or the part of the respondents. This contention is belied, not only by each contract, which contains the correct lot and block numbers for the parcel and, apparently, an accurate metes and bounds description, but also by the fact that the respondents waited until after the date they were obligated to close on the contracts and for more than 100 days after the change in the address had been made known to them before they filed a claim demanding a return of their downpayments. Moreover, the respondents have never alleged that [*3]another premises has the address of 2775 Netherland Avenue or that they inspected any properties other than the properties which are the subject of the contracts of sale.

Accordingly, under the foregoing facts, it is clear that the initial error as to the address was corrected before the petitioners signed the contracts, and that this is not a material mistake which would warrant rescission of the contracts (see Matter of Gould v Board of Educ., 81 NY2d 446, 453 [1993]). Furthermore, the respondents' failure to seek rescission of the contracts within a reasonable period of time after they learned of the correct address indicates that they never considered this to be a material mistake.

The respondents' other contentions stand on no firmer terrain. The inclusion in both contracts of a provision about the deed restriction limiting building "only one house" on each lot, and the merger clause precluding the respondents' reliance "upon any statements made by anyone else that is not set forth in the contract" preclude any claim of reliance upon alleged oral representations by the broker as to the structures that might be built on each lot (see Danann Realty Corp. v Harris, 5 NY2d 317 [1959]; Getty Petroleum Corp. v Delorio, 194 AD2d 762 [1993]).

The respondents' last contention, that the petitioners might not have been able to convey title, does not appear to be so and cannot be used as an excuse for the respondents' failure to close in accordance with the contracts. The petitioners' alleged inability to convey title was not raised by the respondents within the time frame to cure provided in the contracts. Moreover, in light of the fact that it appears that title to the realty vested in the decedent dating back to the date of her husband's death, there appears to be no impediment to conveyance of the properties pursuant to the terms of the contracts. Even, asuming, arguendo, that the real property did not vest in the decedent upon her husband's death, it appears that the co-executors of this estate could easily have obtained an executor's deed from the husband's estate because one of them is also the sole executrix of that estate.

In summary, it appears that the respondents made a relatively modest downpayment of $60,000 on a total purchase price of $1,825,000 and it was not until they determined that they would not be able to develop the property as they wished that they decided to seek to rescind the contracts. Neither the contracts nor the law permits rescission under such circumstances. Accordingly, the petitioners' motion for summary judgment disallowing the respondents' claims is granted.

Settle decree.



SURROGATE