Quirk v Samartino

[*1] Quirk v Samartino 2014 NY Slip Op 51701(U) Decided on November 28, 2014 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2014
Supreme Court, Richmond County

Dennis W. Quirk, Plaintiff,

against

Frank Samartino and AMERICA SAMARTINO, Defendants.



150766/2013
Philip G. Minardo, J.

The following papers numbered 1 to 6 were fully submitted on the 14th day of October, 2014.

Papers Numbered

Plaintiff's Notice of Motion, dated August 12, 20014, with Exhibits

and Supporting Papers______________________________________________ 1

Defendants' Affirmation in Opposition, dated September 16, 2014,

with Exhibits and Supporting Papers__________________________________ 2

Plaintiff's Reply Affirmation, dated October 1, 2014, with Exhibits and

Supporting Papers _________________________________________________ 3

Defendants' Notice of Motion, dated September 12, 2014, with Exhibits and

Supporting Papers _________________________________________________ 4

Plaintiffs' Cross Motion, dated September 30, 2014, with Exhibits and

Supporting Papers _________________________________________________ 5

Defendants' Affirmation in Reply and Opposition, dated October 6, 2014,

with Exhibits and Supporting Papers __________________________________ 6

_____________________________________________________________________________

Plaintiff DENNIS W. QUIRK's ("QUIRK") motion for summary judgment, pursuant to [*2]CPLR 3212, which seeks specific performance against defendants FRANK SAMARITANO and AMERICA SAMARITANO for the immediate transfer of title to QUIRK of the premises located at 90 Tillman Street, Staten Island, New York is granted. Defendants' motion for summary judgment, pursuant to CPLR3212, dismissing plaintiff's cause of action for specific performance is denied as is plaintiff's cross motion, pursuant to 22 NYCRR 130-1.1(c), for the imposition of costs and sanctions.

On or about April 4, 1999, QUIRK and his now deceased wife entered into a written contact to purchase 90 Tillman Street, Staten Island, New York from defendant AMERICA SAMARTINO ("AMERICA") for the sum of $80,000. The closing was to take place on or about May 1, 1999. The contract, a standard Blumberg form, was prepared by AMERICA's attorney and included certain revisions, such as the purchasers' agreement to accept the premises in "AS IS" condition. In addition, the description of the real property sought to be conveyed, although not attached as Schedule "A" as indicated on the Blumberg form, was set forth in an attached deed, dated October 11, 1995, which memorialized the transfer of title to AMERICA by herself and her husband, defendant FRANK SAMARTINO. It is undisputed that the contract was signed by QUIRK, his late wife, and defendant AMERICA and that QUIRK tendered the full contract price of $80,000, in cash, to defendant FRANK SAMARTINO ("FRANK") on the day the contract was executed, although title to the property never transferred.

The events preceding the execution of the contract are also undisputed. FRANK had approached QUIRK in the months prior to the latter's purchase of the premises because he was experiencing serious financial and other personal problems. Thereafter, QUIRK retained the services of an architect as well as engineering firm to inspect the premises. It was subsequently discovered that there were numerous problems with the property, including deficiencies in certificate of occupancy and other irregularities. Despite these issues, QUIRK elected to proceed with the purchase.

However, as a result of outstanding liens and/or judgments against FRANK, the title insurance company would not insure the transfer of title to QUIRK. In addition, QUIRK's attorney at the time believed that the title company would not approve the transaction because the prior transfer to title to AMERICA by herself and FRANK may have been fraudulent. FRANK agreed to resolve all of the issues raised by the title company and gave QUIRK regular periodic assurances that these matters were in the process of being rectified. On October 23, 2013, QUIRK's attorney sent a "Time is of the Essence" letter to defendants setting a closing date of November 11, 2013. Defendants did not respond to the correspondence and failed to appear on the closing date. As a result, QUIRK now seeks to compel the specific performance of the transfer of title of the property.

"A party moving for summary judgment must demonstrate that the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in the moving party's favor (CPLR 3212[b]). Thus, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Jacobsen v. New York City Health and Hosps. Corp., 22 NY3d 824 quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324).

In opposition to QUIRK's motion for summary judgment, defendants have raised [*3]numerous purported defenses, in addition to moving for summary judgment and dismissal of this action. They claim, inter alia, that the subject contract is a product of fraud; that it is void because it fails to accurately identify the subject matter of the sale; that it is unconscionable; that it violates the Best Evidence Rule; that it was rescinded by mutual agreement of the parties; and that QUIRK's cause of action is barred by the statute of limitations.

Defendants base their contention that the contract is void, fraudulent, and/or unconscionable on the ground that they did not intend to sell the entire lot but rather only a portion of the property which they describe as the "pool area". In this regard, they allege that QUIRK "perpetrated his fraud by doctoring the April contract and removing the label/title of the actual Schedule A' on the page describing the pool area, as seen in the unexecuted contract prepared in January, 1999[FN1] , and inserting a 1995 deed into the executed contract in front of the previously stated Schedule A'" (Defendants' Affirmation in Support, dated September 12, 2014, ¶ 8). Both AMERICA and FRANK testified at their respective depositions that they only intended to convey the pool area to QUIRK. However, defendants acknowledge that the contract executed in April, 1999 was prepared by their attorneys.

In addition, defendants' counsel suggests that there should have been an increase in the stated purchase price between the January and April contracts if defendants now sought to convey the entire premises rather than just the "pool area". Defendants also claim that the April contract fails to accurately identify the subject matter of the sale because the contract sets forth that the property to be sold is described as "[B]eing part of the same premises conveyed to the grantor herein by deed dated . . . " (emphasis added). Defendants also maintain that the contract is unconscionable because of the disparity in education, experience, and sophistication between the parties and that the alleged appraised value of the premises greatly exceeds the contract price. Furthermore, defendants claim that plaintiff's failure to produce the "original" April, 1999 contract violates the Best Evidence Rule and that the contract was rescinded by mutual agreement of the parties. Lastly, defendants maintain that the action is barred by the statute of limitations.

In furtherance of their defenses, defendants submit two appraisals from a certified general real estate appraiser; the affidavit of a non-party real estate attorney; and portions of the deposition testimony of plaintiff's attorney at the time of the subject transaction. Relying on the provisions of CPLR 3101(d)(1)(i), QUIRK objects to defendants' use of the appraisals and the report of the real estate attorney, as the identity of these witnesses was not disclosed to QUIRK in a timely manner and was submitted post-note of issue. However, "the fact that disclosure of an expert pursuant to CPLR 3101(d)(1)(i) takes place after the filing of the note of issue does not, by itself, render the disclosure untimely" (Rivers v. Birnbaum, 102 AD3d 26, 35). Accordingly, if necessary, the Court will consider the appraisals and report, as the preclusion of this material would "not necessarily advance the court's role of determining the existence of a triable issue of fact"(Id., at 42). However, the Court will not consider the deposition testimony of QUIRK's prior attorney, which also took place post-note of issue, as defendants have only supplied the Court with excerpts of his testimony rather than the entire transcript.

"Under New York law, written agreements are construed in accordance with the parties' intent and the best evidence of what parties to a written agreement intend is what they say in their writing" (Schron v. Troutman Sanders LLP, 20 NY3d 430, 436 quoting Greenfield v. Philles records, 98 NY2d 562, 569). "As such, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Schron, supra., at 433). Thus, "[P]arol evidence - evidence outside of the four corners of the document- is admissible only if a court finds ambiguity in the contract. As a general rule, extrinsic evidence is inadmissible to alter or add a provision to a written agreement" (Schron, supra., at 433). Finally, "where a contract contains a merger clause, a court is obliged to require full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to vary or contradict the terms of the writing"(Schron, supra., at 433).

Here, the April, 1999 contract between QUIRK and AMERICA unambiguously provides for the sale of the entire premises in the deed attached to the contract for the sum of $80,000. Accordingly, paragraph 18 provides that certain fixtures and personal property such as plumbing, heating, lighting and cooking fixtures are to be included which directly draws into question the veracity of defendants' claims that the sale was for the "pool area" only. In addition, there are no provisions in the contract requiring the sub-division of the property or any other indication that defendants intended to retain ownership of any part of the premises. Conspicuously absent from any of defendants' moving papers is any statement from the attorney who represented them at the time that the April, 1999 contract was prepared and/or signed.

In view of the foregoing, it is unnecessary for the Court to consider defendants' appraisals which allegedly support their claims that the purchase price was substantially below market value at the time of the transaction. Defendants were represented by counsel (who prepared the contract) at the time of its execution; they accepted the tender by QUIRK of the full purchase price without objection; and they regularly advised QUIRK that the issues associated with the title would be resolved. This Court does not require the parol evidence contained in the report of defendants' real estate expert in order to interpret the terms of the contract, which are clear and unambiguous. Lastly, the court finds no evidentiary support for defendants' contention that the contract was altered or rescinded by mutual agreement of the parties[FN2] . As a result, plaintiff has demonstrated his prima facie right to compel enforcement of the April, 1999 contract in accordance with its terms, which are complete, clear and unambiguous. In opposition, defendants have failed to raise a triable issue of

fact.

Accordingly, it is

ORDERED, that plaintiff DENNIS W. QUIRK's motion for summary judgment, pursuant to CPLR 3212, seeking specific performance against defendants FRANK SAMARTINO and AMERICA SAMARTINO requiring the immediate transfer of the premises located at 90 Tillman Street, Staten Island, New York is granted; and it is further

ORDERED, that the motion of defendants FRANK SAMARTINO and AMERICA SAMARTINO dismissing the complaint, pursuant to CPLR 3212, is denied; and it is further

ORDERED, that plaintiff's cross motion for costs and sanctions, pursuant to 22 NYCRR [*4]130-1.1(c), for costs and sanctions against defendants is denied[FN3] .

This constitutes the decision and order of the Court.

Dated: November 28, 2014

E N T E R,

/s/ Philip G. Mianrdo HON. PHILIP G. MINARDO Footnotes

Footnote 1: Defendants contend that an unexecuted contract of sale was prepared in January, 1999 and contained a property description of the pool area.

Footnote 2: In fact, defendants have failed to specify either the date of the claimed recission or its manner.

Footnote 3: The Court finds no merit to plaintiff's contention that defendants' motion practice was frivolous or undertaken primarily to delay or prolong the resolution of this matter.