Feldshteyn v Brighton Beach 2012, LLC

[*1] Feldshteyn v Brighton Beach 2012, LLC 2016 NY Slip Op 50264(U) Decided on March 7, 2016 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2016
Supreme Court, Kings County

Boris Feldshteyn and FAINA FELDSHTEYN, Plaintiffs,

against

Brighton Beach 2012, LLC, Defendant.



507606/14



Appearances:Plaintiff:

Krol and O'Connor

NY NY

Defendant:

Lala Hawa, Esq.

Great Neck NY
Arthur M. Schack, J.

The following papers numbered 1 to 5 read on this motion:Papers Numbered:

Order to Show Cause/Affirmation and Exhibits Annexed1

Affidavit in Opposition and Exhibits Annexed2

Memorandum of Law in Opposition__________________3

Reply Affirmation________________________________4

Supplemental Reply Affirmation_____________________5

________________________________________________________________________

Plaintiffs BORIS FELDSHTEYN and FAINA FELDSHTEYN (the FELDSHTEYNS), in this real estate action, seek the return of their $55,000.00 down payment for the purchase of a condominium unit and parking space at a development known as Brighton by the Sea Condominiums, located at 3041 Brighton 2nd Street, Brooklyn, New York. Plaintiffs the FELDSHTEYNS and defendant BRIGHTON BEACH 2012, LLC (BB 2012) did not close on the deal and BB 2012, pursuant to the purchase agreement, retained plaintiffs the FELDSHTEYNS $55,000.00 down payment as liquidated damages. Plaintiffs the FELDSHTEYNS commenced the instant action for the return of their $55,000.00 down payment and related relief. Defendant BB 2012 moves, pursuant to CPLR Rule 3211 (a) (1), to dismiss plaintiffs' action upon documentary evidence. Plaintiffs oppose the instant motion. Defendant BB 2012's instant motion, as will be explained, is granted and this action is dismissed.

Background

Plaintiffs the FELDSHTEYNS and defendant BB 2012 entered into a purchase agreement [exhibit B of motion], on December 4, 2012, for plaintiffs' purchase at 3041 Brighton 2nd Street of Unit No. 4C and garage Parking Space # PSA, for $550,000.00. Plaintiffs, pursuant to Part A (n) of the purchase agreement, gave defendant a down payment of $55,000.00. Part B, § 1.2 of the purchase agreement states, "[p]urchaser has been given an opportunity to examine the architectural plans for the above unit and for the building in which it is located." Part B, § 5.1 of the purchase agreement deals with the closing of title. It states, "[t]he contract authorizes one adjournment of the closing date of up to 10 days. The contract makes the adjourned closing date time of the essence.' This means the Purchaser must close by the adjourned date. In the event that Purchaser does not close on the adjourned date, Purchaser may risk the loss of his or her Down Payment." Part B, § 15 of the contract states, in ¶ 3, "[i]f Seller elects to cancel this Agreement on account of Purchaser's default, (I) Seller may retain all sums deposited by Purchaser hereunder, . . . as liquidated damages . . . and upon retaining such sum, this Agreement shall be terminated and neither party shall have any further rights, obligations or liabilities or against the other and the parties shall be released and discharged from all obligations and liability under this Agreement and the Plan."

The purchase agreement set February 5, 2013 as the closing date. Defendant's attorney, on March 20, 2013, sent a "Time of the Essence Notice" to plaintiffs' real estate attorney [exhibit C motion], scheduling the closing for April 22, 2013, with the defendant [*2]seller "willing and able to deliver the Deed, transfer documents and all documentation in accordance with Contract of Sale." Further, the Notice states, "[i]f Purchaser does not tender the full balance of proceeds as required by the Contract of Sale, then the Purchaser shall be deemed to have materially defaulted and the down payment will be retained by Seller as liquidated damages. In such event the contract of sale shall be deemed cancelled."

Thereafter, defendant's attorney reminded plaintiffs' real estate attorney of the April 22, 2013 closing date in a letter, dated April 12, 2013 [exhibit D of motion]. Defendants' attorney reiterated that should the FELDSHTEYNS not be present at the April 22, 2013 closing defendant BB 2012 will deem the FELDSHTEYNS in default and retain the down payment, pursuant to the contract, as liquidated damages.

Plaintiffs the FELDSHTEYNS did not appear on April 22, 2013 for the closing. Defendant's attorney in a letter, dated April 23, 2013 [exhibit E of motion], to plaintiffs' real estate attorney advised him that plaintiffs the FELDSHTEYNS were in default under the contract and "[a]ccordingly the Contract is hereby deemed terminated and the down payment shall be retained by Seller as liquidated damages."

The FELDSHTEYNS alleged in their verified complaint [exhibit A of motion] that: the closing date was set for April 28, 2013; and, it was represented to them by BB 2012 that parking space # PSA could accommodate two cars, when it actually could accommodate only one car.

Further, plaintiffs the FELDSHTEYNS claim that they had Vlad Lyubarsky, an engineer, inspect the premises prior to their alleged April 28, 2013 closing date, on April 23, 2013, and Mr. Lyubarsky, in a report to them on April 24, 2013, concluded that the unit had various building code violations.

However, plaintiffs, in their opposition papers to the instant motion, fail to provide any documentation demonstrating that the closing date was April 28, 2013, as opposed to the documented April 22, 2013 closing date and they fail to provide a copy of their alleged April 24, 2013-engineer's report. Therefore, at a minimum, the April 28, 2013 alleged closing date and the alleged April 24, 2013-engineer's report is nothing more than conclusory hearsay.

Also, plaintiffs allege that after they received their engineer's report, they requested a copy of the building's architectural plans and defendant then refused to provide them with acopy of the architectural plans for the building. Plaintiffs allege, in

¶ 11 of the verified complaint, that defendant's refusal "to provide the plans and specifications for the unit to the Feldshteyns and by failing to return their deposit, the Sponsor breached the P & S Agreement and caused the Feldshteyns damages." As noted above, Part B, § 1.2 of the purchase agreement provides that "[p]urchaser has been given an opportunity to examine the architectural plans for the above unit and for the building in which it is located."

Further, there is nothing in writing presented by plaintiffs to show that [*3]Parking Space # PSA could accommodate two cars. The plain language of the purchase agreement refers only to a parking space. It does not state that the FELDSHTEYNS were purchasing two parking spaces.

Again, with respect to plaintiffs' allegation in ¶ 5 of the verified complaint that the closing date was set for April 28, 2013, they present no evidence to substantiate this claim. Moreover, plaintiff BORIS FELDSHTEYN, in § 10 of his Affidavit in Opposition, admits that he had notice of the April 22, 2013 closing date. Therefore, even if an engineer actually inspected the premises on April 23, 2013 and then sent a report to plaintiffs, it was subsequent to plaintiffs' documented April 22, 2013 default.

Discussion"When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Milstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994])." (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]). Further, "[a] motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be appropriately granted only when the documentary evidence utterly refutes plaintiffs' factual allegations, conclusively establishing a defense as a matter of law' (Goshen v Mutual Life Ins. Co. of N.Y, 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594 [1998])." (McMorrow v Dime Sav. Bank of Williamsburgh, 48 AD3d 646, 647 [2d Dept 2008]). Moreover, "[a] complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed." (Well v Yeshiva Rambam, 300 AD2d 580, 581 [2d Dept 2002]). (See Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 796 [2d Dept 2011]; Beradino v Ochlan, 2 AD3d 556, 557 [2d Dept 2003]; New York Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329 [2d Dept 2002]).

In the instant action, plaintiffs the FELDSHTEYNS' verified complaint makes allegations that are clearly contradicted by the documentary evidence presented by defendant BB 2012. Plaintiffs the FELDSHTEYNS allege that the closing which gave rise to this action was scheduled for April 28, 2013. However, based upon the documents presented by defendant BB 2013: the closing was scheduled for and held on April 22, 2013; plaintiffs the FELDSHTEYNS defaulted; defendant BB 2012 deemed the contract cancelled; and, defendant BB 2012 retained plaintiff the FELDSHTEYNS $55,000.00 down payment as liquidated damages. Plaintiffs the FELDSHTEYNS allege that they sought the services of an engineer to inspect the premises on April 23, 2013. This inspection is of no moment and irrelevant since the contract was cancelled the prior day when plaintiffs the FELDSHTEYNS did not appear for the scheduled April 22, 2013 closing. Further, plaintiffs the FELDSHTEYNS allegation that defendant BB 2012 refused to provide the FELDSHTEYNS with a copy of the building's architectural plans [*4]for review is belied by the terms of the contract, wherein plaintiffs the FELDSHTEYNS, as purchasers, acknowledged that they had been given an opportunity to review the architectural plans prior to signing the purchase agreement in December 2012.

The instant action is dismissed because every allegation made by plaintiffs the FELDSHTEYNS against defendant BB 2012 is refuted by documentary evidence.

Conclusion

Accordingly, it is

ORDERED, that the motion by defendant BRIGHTON BEACH 2012, LLC, pursuant to CPLR Rule 3211 (a) (1), to dismiss plaintiffs BORIS FELDSHTEYN and FAINA FELDSHTEYN action upon documentary evidence is granted and the instant action, Index No. 507606/14, is dismissed.

This constitutes the Decision and Order of the Court.

ENTER

___________________________HON. ARTHUR M. SCHACKJ. S. C.