Donawald Realty, Inc. v Chang

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Donawald Realty, Inc. v Chang 2018 NY Slip Op 30029(U) January 5, 2018 Supreme Court, Kings County Docket Number: 513068/15 Judge: Wavny Toussaint Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 1] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/10/2018 an At the IAS State of of County Supreme Court in for held York, at the New Brooklyn, January, N of the 70 New Kings, Center, P R E S E Part Term, and at Courthouse, on Civic 5"" the 2018. York, day T: WAVNY HON. TOUSSAINT, Justice. ------------------ - - --X --------------- DONAWALD REALTY, X INC., Plaintiff, - against TINA - Index No. 513068/15 CHANG, Defendant. ----------------------------------- The papers following of Notice - Motion/Order Petition/Cross to Motion Affidavits Affidavits Reply Affidavits make complaint, 1-2 6-8 1-5 7-8 5) for an a summary CPLR (2) in order, pursuant judgment to this action Realty, papers Donawald Tina and 9 foregoing plaintiff, to Cause/ Annexed Defendant, pursuant Numbered Papers (Affirmations) the commission, to herein: (Affirmations) Upon sequence Show 9 read X and (Affirmations) Opposing 1 to numbered to Inc. recover a real moves (Donawald), CPLR3212 (a), broker' broker's estate extending its time motion seq. 6) (in motion within which motion. Chang 3212, awarding granting her moves (Chang), her (in summary counterclaims 1 of 11 asserted judgment: against (1) for an dismissing Donawald. of the order, the of [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 2] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/10/2018 Donawald on its judgment implied first through and defenses motion fourth pursuant contract, affirmative (in cross-moves seq. an of action causes CPLR to 7) for in and 3212, (1) the (2) pursuant counterclaims, order: for complaint CPLR express Chang's dismissing to it summary granting 3211 answer, and 3212 (b), and 3016 (b). Background The Sales Exclusive was Chang cooperative Donawald owner the apartment to agreed through and at and 1, 2015. $799,000.00 and a purchaser during the the "The or would of to apartment the the subscription "If not full said are the and stock delivered the price purchase and but not limited any the to not the than to be Broker the shall if or cause or by as 2 2 of 11 as procured earned to the allocated in provided and reason to have any or claim is not the the default, and are perform Seller the willful earned lease whatsoever, inability either Seller's not paid lease shares the failure considered she sale. or paid, for accepted, other is and not be is due whatsoever Lynn 1, 3F was Unit agreeable. not price about April that: purchasers of agreement/contract Purchasers, commission is if proprietary the to closing shall purchase which for provides Broker full agreement/contract subscription payable, until of shares delivered including undersigned the and ESLA or from Chang found Chang In to price at that the for asking commission a price commission, unless and at the 3F). pursuant 3F residential a 3F, (Unit ESLA, Unit ESLA, 3% a the market the earn term commission Seller to unit Brooklyn in into and According brokerage payable entered of tenant 53¹ Avenue 5 Chang exclusive (ESLA) proprietary broker Donawald Regarding 288 exclusively July 2015 the located Donawald 2015, February Agreement Listing and [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 3] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/10/2018 Sellerfor againstthe "When lease 3, The $750,000.00. that message text great" and "[t]hat's the deal 2015, the such and Broker undersigned commission the shares will above" forth set Purchasers agreed Chang made Donawald 2015, full "a text "[w]hat's this and take which in message In was When co-brokered. "[w]e Donawald, Donawald are up. was it Donawald The mortgage Let's "Okay. responded, a form on day, following form pre-approval "On a full the offer to 1 to from offer price open was June only the Chang accepted with the 288 June The on June AM on 7th June a mortgage. a 9th, and open during same buyers 2015 as price June loth, of copy 8th house made advertised 2015. Their 2015. . "Please their see financial "Sales payment: attached capability to close 20% Flexible" Closing letter Pre-Approval $750,000.00 Price: Down the date: 3 3 of 11 this sale. if emailed email: Avenue 5th is broker, buyers forwarded following On Monday 8:43 for Donawald $750,000.00. at the day, 2015, viewed hosted prospective pre-approved lo, 3PM. of house that were they buyers Sunday, hosted for that reflecting Later do 20 asked it!" Chang one This and very that indicated by Donawald response, happy" advised then Chang with to expressed: she a back as others Chang $750k at 3F Unit notified offer price the offer for price listing strategy?" Donawald accept the 9, a responsive sent asked June buyers Chang lower to on week, following hand." in a bird to withthetransaction. and Seller the Purchaser, Prospective would "I recommended, the entitled prospective ." down..." down . . percent connection to paid added). Obtains June is to become (emphasis On price delivered are hereby Donawald commission,in purchase as verification of the [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 4] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 . RECEIVED NYSCEF: 01/10/2018 Chang and them presented their increase to never but The offer. with re-negotiate a counteroffer, $750,000.00 A New Retains After of 3F Unit Donawald the sale the prospective to the prospective buyers on unwilling was purchasers of the ESLA, August 19, On for 3F with Unit Keller other Williams on place Mechanics' prospective November The 22, for $45,000.00 filed 3F, of a notice Unit and Chang .Unit Unit estate real claimed 3F, which of notice that also and pendency claimed real services brokerage estate of a "Notice Donawald that was owed Lien). (Second Action/Proceeding October by order 26, 2015 to show commenced Chang cause a petition a verified with summary the First and Mechanics' Liens were Liens. Second invalid under New the 4 4 of 11 Essentially, York Lien against proceeding seeking to Chang argued Mechanics' discharge and (First Mechanics' Donawald the pendency which services brokerage another filed and Chang for On for closing 2015· 23, Donawald 2015, Lien" subsequently against Instant were Liens September Brokers" $45,000.00 into who buyers Empire. Realty entered Chang 2015, another retained Chang Mechanics' owed Donawald Lien). SF term against was Donawald Unit Unit3F. and took Mechanics' of sale Group Two Meanwhile, The buyers, were prospective Sells exclusive market of ultimately Files "Notice to contract by Corcoran procured of the Group, a $785,ooo.oo Who Broker expiration the Corcoran broker, a with to consummated. Chang sale attempted subsequently Law, which summarily that specifically the [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 5] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/10/2018 real excludes Donawald estate answered counterclaims able brokerage the purchaser of a real pendency was the For for granted directed and to and three and willing and 8, of such On counterclaims where commissions the vacating of notices 2016. the into Donawald's served the an asserted complaint, to relating a complaint Chang 2016, 6, converted court commission January in the a lien, unpaid interests, allegations asserted order a brokerage answer. material the for the for an serve filing discharged parties' and economy for An February and petition claim contract the discovery, parties filed Mechanics' issues there were serve serve an of a complaint answer complaint, and Donawald replied court the order, fact on 20 to discovery. warranted contractual her days Chang that the denied claims Don thereafter. interposed Chang's a May 27, within awald 2016 on June counterclaims 5 5 of 11 on motions dispositive parties' 1, 2016 a June 2015, Liens that discharged. previously Prior on counterclaims to defenses 3, a ready, producing basis sell issued of judicial Chang affirmative of a breach to subsequently denying is no property." sake November defenses Chang's there "as making a contract answer Donawald's were is on owed answer court Liens company allegedly and the 2015, 17, Second estate affirmative commission Mechanics' and First On purview. 3F. Unit On December its asserted petition, a brokerage seeking from services motions The 20 filed answer 14, as and days May with 2016. premature because ordered 9, By Donawald ordered court a pleadings. the 2016 four Thereafter, Chang verified counterclaims. discovery to to [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 6] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 A ensued. RECEIVED NYSCEF: 01/10/2018 of Note was issue filed subsequently that indicating all 3212 (a), had discovery been completed. The Motions Instant now Donawald time make to moves for an (2) complaint; attorneys' (3) Liens; her granting lower the that if the when listing for Second and second counterclaim Mechanics' and First first fourth counterclaims she Second and her counterclaim third and Liens; for of abuse process in Unit 3F. While of her admits now buyer, (emphasis prospective Donawald in do would it!", be consented to was my estate process a starting point to According offered the was actually she ESLA the "[i]t real the added). purchasers "[1]et's she that contends it into entered that Donawald a potential property" that Chang with the she that she experience by admits she $750,000.oo, offered advised which Chang, $750,000·O0 "indicating price." that [she] would like to (4) Liens. of to sale the advised and on affidavit was price listing First the on my past based Donawald price, the on her judgment on her dismissing Mechanics' price listing negotiation from Second sale the its extending judgment summary judgment summary resulting from an for understanding costs her granting her judgment and First Donawald with (1) granting resulting submits Chang CPLR to motion. summary summary the regarding pursuant order, Mechanics' damages seeking of her granting an order: and fees seeking for judgment a summary Chang Donawald's moves start the process negotiations 6 6 of 11 regarding the purchase [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 7] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/10/2018 contends Chang several conditions including: of delivery of shares entitled did not to be there upon since of full the sale. 396 commission if purchaser, price to allocated and her; to contends further Chang a a prospective purchase lease that 3F Unit (3) to the Donawald is default" under of "not a "willful with sale on agree the prospective she nor purchasers, essential basic any because theory terms customarily ." transaction..." transaction estate to of proprietary contract did she a real the entitled only procurement of commission agreed with associated and stock a brokerage an have the payment a contract to was following (2) closing; pursuant not could a the purchaser met were (1) Donawald that . . Mechanics' the Regarding Donawald "in a bad unlawful faith to disrupt New to contends Chang of sale [her] Law Lien York that 3F..." 3F Unit were they § 39-a, and action by ." . . seeks Chang on based motion filed based Donawald's filing. Donawald opposes contract with Chang contract with Chang's answer, €”to 8, 2015, on its Donawald and also second and an directed the fourth and of causes of causes for cross-moves defenses submits judgment summary third Donawald affirmative and "authorized first its and Chang. Lynn Chang's on judgment summary June attempt pursuant damages, monetary Liens, the asking Plaintiff-broker of affidavit on an based Unit and at produced a ready, 7 7 of 11 on that attesting orally, the an express implied dismissing counterclaims. Plaintiff-broker, price on summaryjudgment $750,000.o0" setthe action for cross-moves willing in June - writing and and 3, that able 2015, Chang by text (SMS) "[o]n purchaser or about of the [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 8] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/10/2018 . . . who Unit agreed evidenced by Donawald to contends said full the pay authorized issued wrongful "the price asking for $750,000.00 the letter' a 'pre-qualification that of price asking refusal a wilful constitutes the by lending Defendant-seller of default [as] institution." a reputable by Unit to honor the Agreement.." the Listing Discussion judgment Summary clear that no 320, 324 [1986]). triable entitlement form 3212 papers 81 Gervasio, burden to the the the u NY2d 1062 opposing ., 100 produce granted when only 68 sufficient prima by the facie 503 facie the to make opposing of New factual material York, NY2d 49 issues 562 557, issue-determination is the v TwentiethCentury-Fox -FoxFilm Film 941 [1957]). whether determine Griffin, 71 court's "The AD3d in key 1115 [198o]). the factual [2d Dept. on 404, a for motion issues exist, 2010] [internal 8 8 of 11 not motion [1957], quotation than (seeSillman denied3NY2d rearg judgment summary resolve C' v City rather issue-finding the establish Zuckerman at324; a summaryjudgment deciding function NY2d Accordingly, Corp.,3NY2d395, .,3 material 1112, 68 (seeAlvarez, v shifts )' of existence that Ayotte then proof CPLR (see [2012]; showing evidentiary in to of adequacy its fact Failing 499, NY2d evidence of issue it is showing presenting [2003]). NY3d a prima Making to party of .t8 18 ., law 81 NY2d72, Corp., of material any regardless motion, [1993]). burden of of be v ProspectHospital, matter a Constr. Restani the absence Corp., denying Vega (see as should Alvarez bears judgment v Citibank requires showing (see party demonstrating and remedy exist fact moving summary Giuffrida [b]; of issues The to admissible is a drastic such marks issues" is (Ruiz omitted]). to v [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 9] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 is It RECEIVED NYSCEF: 01/10/2018 well-settled broker estate who buyer will right . . .where work the (GraffuBillet, 1985]). the InGraff, broker agreed until forgo to the did to his condition the a real contrary, when he produces seller" at the terms NY2d 36, ., 28 owed the that him to 42 [1971]). broker' broker's "The however, may, be would be Appellate at ESLA the "If full are varied by either shall Broker for (emphasis a condition the risk the bore condition or of precedent the deal simply any in lease reason or failure the to agreement/contract other commission is not or cause any Purchasers, the and shares limited not the and have commission, if the subscription said earned not due claim with not is and the to and payable, whatsoever connection than against transaction" be the the the added). agreement precedent that for accepted, default, as considered or paid, but Seller willful Seller's Seller and perform the He title. once irrelevant that: is not including to and fulfilled, provides price delivered not of passage preparatory was buyer able NY2d 64 "[w]hatever and 'if owing 1984],affd, by 356). purchase inability to was specifically whatsoever, Similar until that and willing Dept. [2d explained a ready, commission (id. Here, Division produce materialized" 356 a (Lane- by the set commission 101AD2d355, precedent never is to commission his Corp., agreed agreement passes'" title 899 he an purchase to otherwise parties the of earned Lawlet a commission receive agreement when able Dep'tStore,Inc.v to have to and willing absence the deemed be is ready, RealEstate "in that the inGraff, that title to Unit3F ESLAbetween must earned. 9 9 of 11 Donawald pass before and a brokerage Chang contains commission [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 10] NYSCEF DOC. NO. 123 There and is factual the never to of earn passed to 3% a the never potential in complaint Law § 39-a, Unit 3F its § 39-a lien in for Towers (Exec. such "Lien 2003]). favor of the faith attempt to for 3F Unit judgment summary New to to York her disrupt Lien of sale where a lien, to damages a real Lien in v Metro whom is the Chang were monetary willfully damages In exaggerated. in connection 10 10 of 11 and is thus (id. is "there because a breach at is of for of the AD2d 303 Inc., sought" because Mechanics' Liens Servs., nature, penalty on a contract 5 39-a in liable discharge securing is making company Law penal void declared owed lien Const. § 39-a estate allegedly under LLC were Liens mechanics' a rendered Lido, against party commissions unpaid award to the fulfilled title Because pursuant exaggerated services Law at Mechanics' entitled bad who a lienor renders the Here, for been of Liens. fee Dept. [2d construed of language have entitled damages, allegedly attorneys' an and mechanics' filing plain the by entirety. monetary Donawald's the Law damages 545 is sale. accepted paid Mechanics' filing by Lien 545, on based the never Counterclaims seek counterclaims for the must that Chang purchasers, and to According commission was $750,000.00 delivered precedent Chang's Chang's were a condition brokerage Donawald's dismissing 3F of price Donawald. by was title purchase Unit procured passage Donawald the for lease purchasers ESLA, that dispute and shares potential RECEIVED NYSCEF: 01/10/2018 t no the INDEX NO. 513068/2015 strictly 545-546). no for basis claim contract property." to sell there addition, with is not Chang was there Donawald's no is finding no other filing that basis of the to the [*FILED: KINGS COUNTY CLERK 01/10/2018 11:20 AM 11] INDEX NO. 513068/2015 NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/10/2018 Mechanics' Liens 3F Unit because a Accordingly, price it at greater time within it is ORDERED a $750,000.o0 (in on of motion the of branch her Chang's complaint the dismissing judgment is the on ORDERED judgment This its order extending branch the is of decision, denied; Q granted and denied; without it is S. T 0 1 NV 8102 s'I~-' ~'r'r. '.> 11 11 of 11 seq. 6) for further motion from Donawald's motion seq. 7) for (in motion seq. 7) for granted. of E for further is judgment N is 6) (in motion cross and it seq. further is motion counterclaims order motion (in it cross Donawald's Chang's dismissing t ~rarer"'~ an is and the court. R, C. HON. HV for resulting and Donawald's complaint the that constitutes of branch is J. "~Iraq') Donawald. (in motion E 9 I :1I by motion damages for Liens that judgment summary ultimately listed 5) granted; Chang's counterclaims the ORDERED seq. motion Mechanics' of filing summary sold having price judgment summary branch the that unlawful damages, any further ORDERED summary the motion make to that judgment summary than Donawald's that which and opposition; sustain not is ORDERED its did Chang WAVNY - TOUSSAINT J. S. C.

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