Serer v Gorbrook Assoc. Inc.
Annotate this Case
Download PDF
Serer v Gorbrook Assoc. Inc. 2011 NY Slip Op 33203(U) December 1, 2011 Supreme Court, Nassau County Docket Number: 000571-11 Judge: Vito M. DeStefano Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. VITO M. DESTEFANO, Justice TRIAL/IAS, PART 19 NASSAU COUNTY JULIAN SERER and CORINA SERER, Plaintiffs, -against- Decision and Order MOTION SUBMITTED: July 12, 2011 MOTION SEQUENCE:01, 02 INDEX NO. 000571- GORBROOK ASSOCIATES INC. and JASP SCHLESINGER LLP, Defendants. The following papers and the attachments and exhibits thereto have been read on this motion: Notice of Motion Notice of Cross Motion Affrmation Affirmation in Response to Motion Affirmation in Response to Cross Motion Memorandum of Law in Opposition Affirmation in Reply Serers ), move for an order pursuat to The Plaintiffs, Julian Serer and Corina Serer (" sought in their complaint , to wit , the CPLR 3212 granting them summar judgment for the relief retu of down payment and other monies tendered in connection with a contract of sale real ," [* 2] Gorbrook" into between them and Defendant Gorbrook Associates Inc, (" sumar judgment on it' Gorbrook cross-moves for an order pursuant to CPLR 3212 granting counterclaims and directing that it be entitled to retain the down payment tendered by the Serers. propert entered the Contract" ) with Gorbrook for the On August 4 2009, Serers entered into a contract (" E" to Motion). purchase of a new house (" the Propert") that was being built by Gorbrook (Ex. " time the At the Eric Silverstein (" Silverstein ) signed the Contract on behalf of Gorbrook. Contract was executed , Serers gave a $96 000 down payment which was put into escrow with at' 3; Ex. " Y" to Cross Motion). The Defendant Jaspan Schlesinger LLP (Ex. "E" to Motion 2009, or on another date and time closing was set to tae place " on or about September 15, wrtten notice to Purchaser" (Ex. designated by Seller or Seller s attorney upon twenty (20) days E" to Motion at' 5). retur All notices required under the Contract were to be sent registered or certified mail, a copy of receipt requested addressed to the par at the address hereinabove set forth with 34). The any E" to Motion at' (Ex. " such notice by regular mail to the attorney for such par" Contract set forth that Chris Coschignano of Jaspan Schlesinger was the attorney for Gorbrook , Deegan, Schwarz, Mineo, Cohn & Gorbrook' s attorney ) and Janet Ganio of Forchell, Curo ' attorney ) (Ex. " E" to Motion at' 34). Terrana, LLP was the attorney for Serers (" Serers The Contract fuher provided for an outside closing date four months from the September 15, 2009 closing date , after which Serers would be entitled to cancel the Contract. In this regard , the Contract specifically provided at paragraph 35: NOTWITHSTANDING ANYTHING IN THIS adjoured CONTRACT TO THE CONTRARY , the date of title closing shall not be Delay in Completion of Dwellng, fort herein by the Seller beyond four (4) months from the date of delivery of title set to deliver title without written consent ofthe paries hereto. The failure of the Seller on or before the above final adjourent date shall entitle the Purchaser to cancel , provided that the this Contract , and to the retur of all sums paid hereunder Purchaser shall give the Seller written notice of such intention to cancel by CERTIFIED MAIL , RETURN RECEIPT REQUESTED, and must be received by the Seller at its above address no later than ten (10) days afer the above final adjourent date. Upon the exercise of said option by the Purchaser as herein provided , the Seller wil refud to the purchaser the monies deposited hereunder (including extras) with all interest , if any, and , upon such refud, the Contract shall 1 In addition to seeking the return of their down payment, Serers also request a return of the A" to Motion). payments they made for " extras , together with the net cost of the title examination (Ex. " [* 3] be deemed cancelled, null and void , without any fuher liabilty on of the paries as against the other. Failure to give such wrtten the par of either notice within such period shall be deemed to be a waiver of the Purchaser s right to cancel under this paragraph of the Contract (Ex. " E" to Motion at' 35). , the outside closing The closing did not occur on September 15, 2009 or Janua 15 2010 date. By letter dated March 9, 2010, Serers ' attorney wrote to Silverstein advising him that adjour Serers , without waiving any rights set forth in the Contract , were willng to extend the F" to Motion). date set fort in paragraph 35 of the Contract to April 15 , 2010 (Ex. " In a letter dated AprilS , 2010 , Gorbrook' s attorney acknowledged that construction had would like to " extend been delayed and that because of customizations to the Propert, Gorbrook the closing date to ' on or about July 1 2010'" (Ex. " G" to Motion). Serers rejected Gorbrook' s request for an " on or about July 1 , 2010" closing date on the with ground that such a date " could extend the closing to approximately mid August" and that " this project, the job could be completed in a much greater resources and manpower dedicated to shorter timeframe" (Ex. " H" to Motion) (emphasis in original). Accordingly, by letter dated April 8, 2010 , Serers agreed to a June 15 2010 closing date afer which they could elect to cancel the contract and receive back their downpayment without fuher notice or extensions to (Gorbrook) if the dwellng is not completed by that date in accordance with the terms of the contract. . . . " (Ex. "H" to Motion). TIME By letter dated May 27, 2010 , Serers ' attorney wrote to Silverstein setting fort a " OF THE ESSENCE closing date of June 28 , 2010" (Ex. " 1" to Motion) (emphasis in original). indicated that in the event Gorbrook is "not ready wiling and able to Serers ' attorney close on that date , Serers demand a " retur of their down payment as well as the cost of all extras heretofore paid" (Ex. " I" to Motion). fuer fort In a letter dated June 24 , 2010 , Serers ' attorney wrote to Gorbrook' s attorney setting a final adjour date of July 15 2010 , stating: Furer to my letter of May 27 2010 , my clients can only agree to extend the Final Adjour Date of this Agreement from June 28, 2010 to July 15 2010. We can not agree to your request for an on or about July 15 2010 date , as this will take us into 2 Coschignano also wrote that " it is importnt at this juncture for all paries to clarify their positions with regard to concluding this transaction. In the event your client does not wish to conclude the transaction, my client would most likely construct the residence in a different fashion than your client might otherwise desire " (Ex. " G" to Motion). [* 4] wil August 2010. . . . If your clients are unable to close by mid- July, my clients no choice but to seek another propert (Ex. " J" to Motion). have s attorney, By letter dated July 22, 2010 addressed to Silverstein and copied to Gorbrook' Serers ' attorney indicated that his clients were canceling the Contract on the ground that each of the dates set for closing had passed and Gorbrook could not deliver possession of a completed dwellng. The letter requested a refud of the downpayment as well as all sums paid for customized extras (Ex. " K" to Motion). On the same date , Serers ' attorney also e-mailed Gorbrook' s attorney and Robert Tierman (a different Gorbrook attorney) notifying them of Serers ' election to cancel the Contract (Ex. " L" to Motion; Ex. " U" to Cross Motion). Gorbrook' s attorney replied to the cancellation as follows: " I understand completely. I will try to " (Ex. " M" to Motion). help faciltate things for you and your client. Than you for your patience , on Notwithstading Serers ' July 22 2010 request for a retu of their downpayment August 3 , 2010, Serers ' attorney wrote to Tierman and Michael Premisle stating as follows: wiling As you have advised me that there is a cour date for tomorrow, we would be , provided that to hold off on insisting upon the immediate retu of our downpayment some sort of stipulation is entered into in Cour tomorrow confirming your and Bob Tierman s representations to me , and setting fort a short timeframe , such as August 16 or so, within which to complete the home and get the C/O inspection scheduled, with closing to occur upon issuance of the C/O. We also need a resolution of the Waranty issue , which we are entitled to by statute and by the terms of the Contract (Ex. "V" to Cross Motion). On August 17 , 2011 , Gorbrook inquired as to whether Serers would be willng to proceed if Gorbrook hired a new general contractor to finish the job (Ex. "W" to Cross Motion). Serers rejected the request for a new contractor (Ex. " X" to Cross Motion). D" to On September 23, 2010, Serers purchased another house in Plainview (Ex. " inter alia the retu of their down commenced an action seeking, Motion) and thereaftr payment (Ex. " A" to Motion). 3 Michael Premisler is litigation counsel in a dissolution proceeding commenced by Allen C" to Cross Motion), Allen Silverstein and Robin Silverstein seeking the dissolution of Gorbrook (Ex. " Silverstein and Robin Silverstein are Eric Silverstein s father and sister, respectively (Tierman Affirmation to Cross Motion at' 13), [* 5] Serers ' Motion for Summary Judgment In support of their motion for sumar judgment, Serers argue that " because Gorbrook had been unable to deliver possession of a completed dwellng as required by the terms of the above contract , Serers elected to cancel the contract and demanded the retu of their down payment , all accrued interest and all sums paid to Gorbrook for any and all extras ordered and/or instaled at the above premises " (Affrmation in Support at' 20). Accordingly, Serers seek order directing Defendant Jaspan Schlesinger , the escrow agent, to deliver the downpayment to Serers and that Gorbrook be directed to repay Serers for any extras ordered as well as the cost of 4 Serers ' motion is premised on the July the title examination (Affrmation in Support at' 27). , 2010 letter canceling the contract , which was , according to Serers , sent within ten days of the final adjour date of July 15, 2010, In opposition, Gorbrook argues that it did not receive notice of cancellation of the Contract within ten days of Januar 15, 2010 , which was the final adjour date as established in paragraph 35 of the Contract. It is undisputed that Serers did not seek to cancel the Contract within ten days of Januar 15 2010 nor did they, prior to that date, seek to adjour the final closing date in accordance with the Contract. Significantly, the first correspondence afer the Januar 15, 2010 final adjour date did not occur until March 9, 2010 at which time Serers indicated a willngness to adjour the closing date until April 15, 2010 (Coschignano Affrmation at' 5; Ex. " F" to Motion). In light ofSerers ' failure to comply with paragraph 35' s terms regarding cancellation of the Contract, the cour concludes that Serers waived their right to cancel thereunder. Accordingly, the Serers were relegated to common law contract principles, and, in paricular, general time of the essence principles , with respect to canceling the Contract. Either par may subsequently give notice making time of the essence provided that such notice is clear, distinct and unequivocal, and fixes a reasonable time for the other par to act (Baltic Rossi 289 AD2d 430 (2d Dept 2001)). Importtly, the par need not specifically state that time is of the essence as long as the notice specifies a time in which to close and notice that McClean 171 AD2d 648 (2d (Knight the failure to close on that date will result in a default Merman 134 AD2d 555 (2d Dept 1987)). Ben Zev Dept 1991); Serers ' letter dated June 24 , 2010 provided suffciently clear and unequivocal notice that 4 Defendant Jaspan Schlesinger, which is holding the downpayment of $96, 000 in escrow, has no interest in the escrow funds and wil release the funds as directed by the court and , thus , takes no position with respect to the dispute between the paries or the parties respective motions, [* 6] 2010 , set as the " final adjour date , constituted a time of the essence closing date and have no advised Gorbrook that if it was " unable to close by mid- July" that the Serers would " Oberlander 155 AD2d 436 (Sohayegh choice but to seek another propert" (Ex. " J" to Motion) (2d Dept 1989) (letter indicating a " final adjourent of closing" on certn date established a July 15 time of the essence closing date )). The question then arises as to whether Serers afforded Gorbrook a reasonable time to close. What constitutes a reasonable time to close depends on the paricular facts and circumstances of each case. Among the factors to be considered are the nature and object of the contract , the previous conduct of the paries, the presence or absence of good faith , the to either one, as well as the experience of the paries and the possibilty of hardship or prejudice McClean 171 AD2d at 650 (Knight specific number of days provided for the performance Almquist 241 AD2d 181 (1st Dept Merman 134 AD2d at 783 supra; Miler supra; Ben Zev 1998) (no bright- line criteria establishing the reasonableness of a paricular that the nuances of each case are different)), time period given Reasonableness in this case depends on many factors, including the conduct of the paries and whether the thee weeks set fort in Serers ' June 24 , 2010 letter provided a reasonable time in which to close. The previous conduct of the paries as well as the time period for the adjourents involved do not reveal extensive delays or acts of bad faith on behalf of Gorbrook. However , in the absence of any admissible evidence as to the extent of constrction needed to complete the house, coupled with Serers ' knowledge that a certificate of occupancy would not issue prior to completion , Serers have failed to meet their burden of establishing, as a matter of law , that the June 24 2010 letter constituted a valid time of the essence letter insofar as Opert 218 AD2d (see Klein providing Gorbrook a reasonable time period in which to close 784 (2d Dept 1995) (defendant's notice setting fort a time of the essence day, with knowledge that certin certificates or permits could not be obtained by that date , failed to provide plaintiff with reasonable time in which to close)). Accordingly, Serers ' motion for sumar judgment is 5 The Serers ' letter dated May 27, 2010 letter set forth a time ofthe essence closing date of June 28, 2010 (Ex. " I" to Motion), However, on June 24 2010, prior to the June 28 law date , Serers ' attorney wrote Gorbrook setting forth a final adjourn date of July 15 2010 (Ex. " J" to Motion). The June 28 time , 2010 letter. ofthe essence date , however , was waived by virte of the letter dated June 24 [* 7] denied. Gorbrook' s Cross Motion Gorbrook argues , in support of its cross motion for sumar judgment , tht Serers cancellation of the Contract constituted an anticipatory repudiation entitling Gorbrook to retain Serers ' down payment (Memorandum of Law in Support of Cross Motion at p 25). Pursuat to the doctrine of anticipatory repudiation , a "wrongful repudiation of the contract by one par before the time for performance entitles the nonrepudiating par immediately claim damages for a total breach. The nonrepudiating par need not , however tender performance nor prove its ability to perform the contract in the futue. Rather, the doctrne relieves the nonrepudiating par of its obligation for futue performance and entitles that par to recover the present value of its damages from the repudiating par' s breach of the Us. News World Report 75 NY2d 38 (1989) (citations tota contract" (American List Corp, omitted); Tenshore Realty, Ltd 31 AD3d 741 (2d Dept 2006) (plaintiff's notice of Smith cancellation defective and , thus , defendant entitled to consider such notice as an anticipatory repudiation); Velazquez Equity LLC 28 AD3d 473 (2d Dept 2006) (defendant entitled to consider plaintiff's defective notice of cancellation as an anticipatory repudiation of the contract)). Here , Serers ' July 22 2010 letter indicating that they were canceling the Contract and seeking a refud of their downpayment was a positive and unequivocal indication of its intention AJW Qualifed Partners, LLC 83 AD3d 804 to cancel the contract (Palmetto Partners, L.P, 807 (2d Dept 2011)). In this regard , Serers were aware that a house was being constrcted to their specifications and customizations and that a certificate of occupancy was needed prior to closing. If it is determined that Serers ' time of the essence date did not allow Gorbrook a reasonable time in which to comply with the Contract and close, then Serers ' cancellation of the (Klein Opert 218 AD2d at Contract was tataount to an anticipatory breach of the contract 6 The paries do not address the possible significance ofthe August 3, 2010 e-mail whereby Serers ' attorney expressed a willngness to close after the July 15 " final adjourn date . In this regard , the court notes the following. In the event it is determined that the June 24 , 2010 letter did not set fort a reasonable time in which to close and, thus , did not constitute a valid time ofthe essence letter, then the August 3 2010 e-mail would arguably have no legal significance. On the other hand , if it is determined that the June 24 letter did set forth a valid time of the essence date , then the August 3 , 2010 e-mail could arguably be viewed as waiver ofthe July 15 2010 time of the essence date (see Stefanell Vitale 223 AD2d 361 pst Dept 1996) (a part' s right to timely performance may be waived even after passage of the Levine date which had previously been made ofthe essence); Sarbello 112 AD2d 197 (2d Dept 1985) (even if buyers were in default by failng to appear on closing date , sellers continued to deal with buyers as if their contract of sale remained in full force and effect)). [* 8] 786 , supra; Oxford Funding Corp. James H Northrup, Inc. 130 AD2d 722 (2d Dept 1987)). Under the circumstances, Gorbrook' s cross motion for sumar judgment is denied. Serers ' contention , raised in opposition to Gorbrook' s cross motion , that the Contract was void because Silverstein lacked authority to execute it , is devoid of merit. Serers ' Request for the Withdrawal of Defendant s Attorney Tierman Serers also seek an order directing the law firm of Litwn & Tierman to withdraw as Gorbrook' s counsel on the ground that Tierman is not authorized to practice law in New York since he does not have a bona fide offce in the State of New York, as required by Judiciar Law 470, Contrar to Serers ' contention , Tierman is authorized to practice in the State of New York insofar as his offce in New Jersey has a reciprocal arangement with the New York firm Salon, Marow in which each firm uses the offices of the other to receive cour papers, conduct depositions , closings , and meetings (Tierman Affrmation in Support of Cross Motion at " 5051)(Keenan Mitsubishi Estate, New York, Inc" 228 AD2d 330 (pt Dept 1996) (attorney with 470 insofar as attorney, who was a member offce in New Jersey complied with Judiciar Law of New York bar , had entered into a reciprocal satellte office sharing agreement with New York City firm)). Based on the foregoing, it is hereby ordered that the motion and cross motion are denied. This constitutes the decision and order of the cour. Dated: December 1 , 2011 ENTERED DEC 07 2011 NAS8AU COUNTY COUNTY CLIRK' S OFfICE New Jersey firm Litwin & Tierman , P. , New York firm Ackerman Levine , Cullen , Brickman & Limmer LLP fied a Notice of Appearance on behalf of Gorbrook (Ex. " to Motion). , As co-counsel to the
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
