Makris v Boylan

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Makris v Boylan 2018 NY Slip Op 33702(U) May 14, 2018 Supreme Court, Orange County Docket Number: Index No.: EF000986/2018 Judge: Sandra B. Sciortino 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: 1] ORANGE COUNTY CLERK 05/15/2018 02:30 PM INDEX NO. EF000986-2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/15/2018 To commence the statutory time for apj:lcalsas of right (CPLR 551.3 [a]), you arc advised to serve a copy of this order, \Vi th notice of entry, upon all parties. .SUPREMECOURT OF THE STATE OF NEW YORK .COUNTY OF ORANGE ----------------------------------------------------------------)(. DECISION' AND .ORDER Index. No.: . - EF000986/2018 JERRY MAKRIS, Plaintiff; . -.- . - - -against- ' Motion Date: 3/26/18 Sequence No. l, 2 &3 JAMES BOYLAN and ELIZABETH BOYLAN, Defendants. ______________ .;.;..;. _____ .;.._,_._-~;.;,.-,.,.·----,.'-'-'-.,---'-:'-.,--''-'--·;..,.;.._;..,_.;..;.~_;.. __ ;.;,.)(' SCIORTINO, J. The following papers nuinberedl to 8 were tead 'ori the following motions: (Seq. #i}Motion by Plaintiff for leavefo amend theNot!ce ofPendericy;{Seq. #2) Moticihby Defendants for an order dishlissirig, the Complaint pursuant ·to Civil PracdceLaw & Rules.· §32 i l(a)(7) and to vacate the notiCe. of pendency; and. (Seq. #3) Plaintiffs cross-motion for an. order disqualifying Dayid A; Donovan as attorney for Defendants. The motions are i;onsolidateci for purposes of thi~ decJsion: NUMBERED PAPERS Notice of Motion/Kaplan Affirmation with ExhibitsA~B Notice of Motion/ Donovan Affirmation with'Exhibits A-E Notice of Cross M()tion/KaplanAffirmaticiri with Exhibitol Memciranduin cifLa\V .Reply Affirmation (Donovan) l.,.2 3-4 5-6 7 8 This is •an action for specific performance of _a contract for purchase .and sale of a property located at 32 Old Chester Road, Goshen, .New York (the - premise~) .. On January 16, 2018, the plaintiff and defendants :entered into a "Purchase Agreement" for the transfer of title of premises owned by the defendants. Following the execution of th{! Agreement, the defendants consulted with their attorney, 9avidA; Donovan, Esq~ who thereafter communicated with pialritlff's attorney by i Filed in Orange County 05/15/2018 12:00:00 AM $0.00 1 4 Bk:of 5128 Pg : 1275 Index: # EF000986-2018 Clerk: DK [*FILED: 2] ORANGE COUNTY CLERK 05/15/2018 02:30 PM NYSCEF DOC. NO. 22 INDEX NO. EF000986-2018 RECEIVED NYSCEF: 05/15/2018 letter dated January 22, .2018, advising that the defendants had ·elected not to proceed with the transaction. Plaintiffcomme;fr1cecl this adiori ·on January 25, 2018 seeking spedfic performance or, in' the alternative, coi:ipensator)' and consequential darn ages resulting from an alleged breach of the Agreement. Contrary to defendants' argument, the Agreement does satisfy the Statute of Frauds (General Obligations Law, § 5-703, subd: 2) as it identifies the parties to the subjec;t real estate sales transaction, describe,4 the realty to be sold with reasonµble particularity, and stated the purchase price ofthe realty;the down pay1Tientand the balance due upon closing. The Agreement also provided for .a closing d(lt~ and stated that the transaction was not subject to a mo~gage · finaridrig. (See; Willmott v. Giarraputo, SN.Y .2d 250 [ 1959]) However, the Agreel11erit also contains contingencies evidencingthatitwas not intended to be a cornpiete agfeernel1t. {See, Scheckv. Francis, 26N:Y.2d .466 [1970]; Willmoll, 5 NY2d 250, Kingsbridge Improvement Co. v..Ainerican Exchange-Pacific Nat.. Bank, '249 N.Y. 97 [1928]; Bernat v. West Seventy-Third Street Corp,; 230 AD J8 [1 Dept l930];Spielvogelv. Veit, 197AD804[2dDept1921]) The Agreemenfstates; on its face, that it is ~u.bject to attorney approval and aformalcontraCt of sale. I tis undisputed that there was no attorney approval arid no fomialcontract of sale. The' Agreement, a conditional rigreernerit nOtiritended as a fin:aLagreement, was a memorandum of a number of terms which were later to. be focluded in a formal contract of sale which the parties expressiy agreed to execute; In fact, it was stated in 'the Agreement that the down payment was to. be paid upon the signing ofa formal conirad of sale, more evidenc;e that the writing was not intended to be a complete contract (See; Sheehan v Cu/ot{a, 99 AD2d544 [2d Dept 1984]) .,2- 2 of 4 [*FILED: 3] ORANGE COUNTY CLERK 05/15/2018 02:30 PM NYSCEF DOC. NO. 22 INDEX NO. EF000986-2018 RECEIVED NYSCEF: 05/15/2018 In his opposition, plairitiffc6l1tends the additional fact that a more formal contract was to be signed does not render theAgreement unenforceable; citing Pescatore v-'lv!anniello 19 AD3d 571 [2d Dept 2005] •in which the Second Department cited Maccioniv Guzman 145 AD2d 415 [2d Dept 1988]. This Court does not agree with the plaintiffs interpretation~ In that case; the pµrchase-offer '. agreement did not state ()njts_Jace that it was contingenfupon a more formal co.ntract. There is a. difference between an agreement where the parti~s contemplate a more formal contract and one that is specifically contingent upon it. Furthermore,. before specific.perfor111m1ce ofa contractfor the sale of real property may be . granted, a plaintiff must derrioristrate tlmt it substantiall)'peiforrrted:its contractual obligations and that it isready, wililrig aricLabl~ to satisfy th6se ·obligatiol1s not yet performed, regardless of any aiieged anticipatory breach by the defendant. _(See, Johnson v Phe/an28 l AD2d 394[2d Dept 2001 ]) lri his opposition, plaintiff offers nothing toihdicate'that he is ready, wiHin~ and able to satisfy his obligations under the Agreement. Pfaintiff never paid the dovyn payment and d~ys tl~ere were only nine between the date of the Pu,rchase Agreemcnt.'_lnd the commencement of this action. Accordingly,_i~ is hereby ORDERED thatdefendantS' tnotfori fo cllsiriiss is granted; arid it is further ORDERED that the Complaihtis dismissed; and itis further ORDERED thatthe notiee ofpetidency of this action.filed by the plaintiff in the office of the Clerk of the CourityofOrarige on January 25, 2018 against the subjectpremises, 32 Old Chester Road, Goshen, New York is hereby canceled of record and the Clerkishereby directed to cancel ..:3_ 3 of 4 [*FILED: 4] ORANGE COUNTY CLERK 05/15/2018 02:30 PM NYSCEF DOC. NO. 22 INDEX NO. EF000986-2018 RECEIVED NYSCEF: 05/15/2018 same ori NYSCEF teforrfogfo this order . . ORDERED that Pfairitlfrs J.notiori and cross-I.notion are denied as moot. Dated: May i4, 2018 Goshen, New York ENTE.R:· HON; SANDRA R SCIOR)'INO, J.S.C~ TQ: Counsel ofRecord via NYSCEF -4- 4 of 4

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