South Bronx Overall Economic Dev. Corp. v Vitale

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South Bronx Overall Economic Dev. Corp. v Vitale 2018 NY Slip Op 33968(U) September 27, 2018 Supreme Court, Bronx County Docket Number: 22630/2018E Judge: Julia I. Rodriguez 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. [* 1] FILED: BRONX COUNTY CLERK 10/02/2018 09:54 AM ,,,,---.. L~- ~ NYSCEF DOC. NO. 37 SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF THE BRONX --------------------------------------------------------------------X South Bronx Overall Economic Development Corp., Plaintiff INDEX NO. 22630/2018E RECEIVED NYSCEF: 10/02/2018 Index No. 22630/2018 E DECISION & ORDER -againstJohn E. V itale, Defendant. --------------------------------------------------------------------X Present: Hon. Juli a I. Rodriguez Supreme Court Justice Recitation, as requ ired by CPLR 22 I 9(a), of the papers considered in review of defendant's motion to dismiss the complaint and fo r judgment on his countercla im. Papers Subm itted Numbered Notice of Motion, Affirmat ion & Exhibits Affirmation in Opposition & Exhibits Memorandum o f Law in Opposition Reply Affirmation & Exhibits I 2 3 4 ln the instant action, plaintiff South Bronx Overall Economic Development Corp. (" Sob ro,.) alleges causes of action for specific performance and breach of contract against defendant John E. Vitale in connection with an alleged agreement for t he sale by Vitale to Sobro of certain real property located at 45 15 Park Avenue, Bronx, NY ("the Premi ses"). Vitale now moves to dismiss the complaint, pursuant to CPLR 32 11 (a)(l ), (5) 1 and (7). and for j udgment on his counterclaim for damages in the amount of $3,000,000.00 for placing a lien on his property without a valid claim and/or cause of action. The complaint. verified by Sobro ' s President, alleges as fol lows: On or about December 3, 20 14, Sobro· s President and Vitale executed a Memorandum Of Understanding (MOU) for the sa le of the Premises by Vitale to So bro, for a purchase price of $460,000.00, for the purpose of developing veterans housing on the Prem ises. The MOU is a binding and enforceable 1 T he moving papers do not address defendant' s basis for dismissa l under CPLR 32 11 (a)(5) and , therefore, the court will not address this subsection and deems this claim abandoned. -1 - 2 of 5 [* 2] FILED: BRONX COUNTY CLERK 10/02/2018 09:54 AM NYSCEF DOC. NO. 37 INDEX NO. 22630/2018E RECEIVED NYSCEF: 10/02/2018 agreement for the sale and transfer of the Premises. So bro has performed or has been prevented from performing all conditions set forth in the MOU and is not in default of same. In reliance on the MOU, So bro spent in excess of $65,000.00 in preparation for the development of the project, including appraisals, environmental studies, survey and architectural designs and drawings. Sobro is also contractually beholden to investors who have made commitments toward the development of the project. In June 2017, Sobro provided a copy of the appraisal of the Premises to Vitale and requested finalization of the transaction by entering into a formal contract. Vitale fai led to respond and, soon thereafter, Sobro discovered that Vitale had been actively marketing the property to other potential purchasers and had received a downpayment from one such potential purchaser. After the signing of the MOU, Vitale unjustifiably demanded additional acquisition costs in excess of the agreed-upon $460,000.00. After execution of the MOU, Vitale without basis, failed to execute a contract of sale and would not proceed to close title and failed and refused to take the actions necessary to comply with the MOU and close title. As such, Vitale is in breach of the MOU. At all times, Sobro was and remains ready, willing and able to close on the Premises pursuant to the terms of the MOU. The Premises are unique and Sobro has no adequate remedy at law. In support of his motion, Vitale contends that the MOU omitted the essential terms of a complete agreement, including a closing date and a risk of loss clause, and that the MOU is not a binding contract because certain emails demonstrate that there were negotiations for an agreement, and not an enforceable agreement. In support of his contentions, Vitale submitted the affidavit of John E. Vitale, the MOU and certain email communications. In his affidavit, Vitale discusses the emai ls, which concern a different transaction between other parties and other property, which are irrelevant here. Vitale also states that he did not receive any consideration for the MOU, the MOU did not set forth a closing date a nd Sobro did not set a closing date at anytime thereafter. In its "Tem1s" section, the MOU states that " [t]he Seller shall sell and convey and the Purchaser shall purchase the property ... known as 4515 Park Avenue, Bronx, New York, 10457, Block 3030, Tax Lot 165." The Purchase Price is listed as $460,000.00, to be paid at a -2- 3 of 5 [* 3] FILED: BRONX COUNTY CLERK 10/02/2018 09:54 AM NYSCEF DOC. NO. 37 INDEX NO. 22630/2018E RECEIVED NYSCEF: 10/02/2018 construction closing. In the case of default under the MOU, the MOU provides that (1 ) if the purchaser defaults, the seller's sole remedy is to retain the down payment and (2) if the seller defaults, the purchaser shal l have all remed ies available at law or in equity, including, but not limited to, specific performance. The MOU further states that " it completely expresses their full agreement.., *** ****** * On a motion to dismiss pursuant to CPLR §32 11(a)( l ) and (a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every pos'sible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez. 84 N.Y.2d 83, 6 14 N.Y.S.2d 972 ( 1994). However, "al legations consisting of bare legal conclusions as well as factual c laims flatly contradicted by documentary evidence are not entitled to any such consideration." See Maas v. Cornell, 94 N.Y.2d 87, 9 1, 699 N.Y .S.2d 7 I 6 ( I 999). Dismissal is warranted only if the documentary evidence submitted utterly re futes plainti ff's factual allegations and conc lusively establishes a defense to the asserted claims as a matter of law. See Goshen v. Mutual L[fe Ins. Co. of N. Y. . 98 N.Y.2d 3 14, 326, 746 N .Y.S.2d 858 (2002); Weil, Gotshal & Manges, LLP v. Fashion Boutique ofShort Hills, Inc. , 10 A.D.3d 267, 270 ( 1st Dept. 2004). Affidavits submitted by a defendant to attack the suffic iency of a pleading ·'will seldom if ever warrant the relief he seeks unless ... the affidavi ts establish conc lusively that plaintiff .has no cause of action." See Rove/lo v. Orofino Realty Co .. Inc.. 40 N.Y.2d 633, 636, 389 N.Y.S .2d 3 14 ( 1976). The elements of a claim for breach of contract are: (I) the existence of a contract, (2) the plaintiff s performance thereunder, (3) the defendant's breach thereunder, and (4) resulting damages. See Harris v. Seward Park Housing Corp., 79 A. D.3d 425 , 426, 9 13 N. Y.S.2d 16 1 ( 151 Dept. 20 10). To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. See Express Indus. & Terminal Corp. v. New York State DOT, 93 N.Y.2d 584, 589, 693 N. Y.S.2d 857 ( 1999). Here, the MOU manjfests the mutual assent of Sobro and Vitale to all material terms of the agreement. Indeed, it specifically states that " [a]ll prior understandings, "' - .) - 4 of 5 [* 4] FILED: BRONX COUNTY CLERK 10/02/2018 09:54 AM NYSCEF DOC. NO. 37 INDEX NO. 22630/2018E RECEIVED NYSCEF: 10/02/2018 agreements . .. between the Seller and Purchaser are merged in this MOU [sic] it complete ly expresses the parties full agreement and has been entered into after full investigation, neither party relying upon any statement made by anyone else that is not set forth in this MOU." As such, contrary to Yita le·s contention, it constitutes an enfo rceable contract. Further, the complaint sufficiently alleges Sobro' s performance under the contract, Vitale ' s breach thereunder and resulting damages. The elements of a claim for specific performance of a contract are: ( I ) the plaintiff substantially performed its contractua l obligations and was willing and able to perform its remaining obligations, (2) the defendant was able to convey the property, and (3) there was no adequate remedy at law. See EMF General Contracting Corp. v. Bisbee, 6 A .D.3d 45, 5 1, 774 N. Y.S.2d 39 ( I si Dept. 2004). The court finds that the allegations set forth in the complaint, di scussed above, satisfy the pleading requirements for a cause of action for specific performance. The court does not find that the documentary evidence submitted by Vitale utterly and flatly contradicts Sobro's factual allegations and conclusively establishes a defense as a matter of law. Based upon the foregoing Defendant John E. Vitale's motion to dismiss the complaint, pursuant to CPLR 32 1 l (a)( l ) and (a)(7), and for judgment on his counterclaim is denied in its entirety. Dated: Bronx, New York SeptembeL 2018 7 -4- 5 of 5

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