AH Investimentos Corp. v King Equity Partners LLC

[*1] AH Investimentos Corp. v King Equity Partners LLC 2018 NY Slip Op 51215(U) Decided on August 17, 2018 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2018
Supreme Court, Kings County

AH Investimentos Corp., Plaintiff

against

King Equity Partners LLC, Defendant.



524426/2017



Attorney for Plaintiff

Andrew G. Kao, Esq.

733 Third Avenue, 15th Floor

New York, New York 10017

646-790-5848

Attorney for Defendant

Allen Schifino, Esq.

Bleckner P.C.

350 Fifth Avenue, Suite 6440

New York, New York 10118

212-279-4490
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on defendant King Equity Partners, LLC's (hereinafter defendant or KEP) notice of motion filed on March 29, 2018, under motion sequence four, for an order pursuant to CPLR 3212 granting summary judgment in its favor: (1) dismissing plaintiff AH Investmentos Corp.'s (hereinafter plaintiff or AHI) complaint and (2) cancelling the two notices of pendency filed by plaintiff.

Notice of Motion

Exhibits A to N

Affirmation in Support

Exhibits A to G

Affidavit of Stephanie Reyes

Exhibits A to I

Memorandum of Law in support

Affirmation in Opposition to Cross Motion

Recitation in accordance with CPLR 2219 (a) of the papers considered on AHI's notice of cross motion filed on April 19, 2018 under motion sequence five, for an order pursuant to CPLR 3212 granting summary judgment in its entirety as follows:

(1)On the first cause of action, an order declaring ineffective and directing defendant to rescind the contract termination or, in the alternative, an order declaring the termination to be null and void and of no force or effect and compelling the defendant to convey to the plaintiff title to the 117 Property in compliance with the 117 Agreement;

(2)On the third cause of action, a declaration that the defendant's right to terminate the 117 Agreement is limited to circumstances where defendant satisfies the conditions precedent to plaintiff's performance;

(3)On the fourth cause of action, a declaration that the time within which plaintiff is to perform pursuant to the 117 Agreement be tolled until such time as defendant complies with their obligation under the 117 Agreement;

(4)On the fifth cause of action, judgment against defendants in an amount to be determined at trial, but estimated to be at least $234,092.00, together with punitive damages, applicable interest, costs, and attorney's fees;

(5)On the sixth cause of action, an order declaring ineffective and directing defendant to rescind the contract termination or, in the alternative, an order declaring the termination to be null and void and of no force or effect and compelling the defendant to convey to the plaintiff title to the 115A Property in compliance with the 115A Agreement;

(6)On the eighth cause of action, a declaration that the defendant's right to terminate the 115A agreement is limited to circumstances where defendant satisfies the conditions precedent to plaintiff's performance;

(7)On the ninth cause of action, a declaration that the time within which plaintiff is to perform pursuant to the 115A Agreement be tolled until such time as defendant complies with their obligation under the 117 Agreement;

(8)On the tenth cause of action, judgment against defendants in an amount to be determined at trial, but estimated to be at least $234,092.00, together with punitive damages, applicable interest, costs, and attorney's fees;

(9)Plus interest, costs, attorney's fees, and disbursements in connection with this action; and

Notice of Cross Motion

Affirmation in Opposition to defendant's motion and in support of cross motion

Exhibits 1 to 4

Affidavit of Heloisa Rocha

MOTION PAPERS

Defendant's motion papers includes the following documents: (1) an affirmation of Allen Schifino, Esq., KEP's counsel (hereinafter Schifino), with seven annexed exhibits that he refers to labeled A through G; (2) an affidavit of Alessandro Zampedri, KEP's manager (hereinafter Zampedri), with fourteen annexed exhibits that he refers to labeled A through N; and (3) an affidavit of Stephanie Reyes, KEP's office manager (hereinafter Reyes) with nine exhibits, labeled A through I.

Exhibit A annexed to Schifino's affirmation is a copy of plaintiff's verified complaint. Exhibit B is described as the two notices of pendency for the subject properties. Exhibit C is defendant's verified answer. Exhibit D is an order issued by this Court denying plaintiff's motion for preliminary injunction on January 5, 2018. Exhibit E is a copy of an order of this Court dated January 14, 2018 denying plaintiff's application for a preliminary injunction. Exhibit F is the transcript of oral arguments held on February 23, 2018 before this Court regarding KEP's CPLR 3211 (a) motion to dismiss. Exhibit G is an order of this Court dated February 23, 2018 denying KEP's CPLR 3211 (a) (1) motion to dismiss.

Exhibit A annexed to Zampedri's affidavit is a copy of the 117 Kings Street residential contract of sale. Exhibit B is a copy of the 115A Kings Street residential contract of sale. Exhibit C is a copy of a 30 day Notice of Closing Date letter regarding 117 King Street. Exhibit D is copy of a 30 day Notice of Closing Date letter regarding 115A Kings Street. Exhibit E is described as a copy of United States Postal Service (USPS) delivery verification. Exhibit F includes a copy of a temporary certificate of occupancy for 117 Kings Street effective November 20, 2017. It also includes a copy of a temporary certificate of occupancy for 115A Kings Street effective November 22, 2017. Exhibit G is described as a copy of an email dated November 21, 2017 from Schifino to Cinotti LLP. It also includes a copy of an email from Schifino to Hurni and Schwartz. Exhibit H is a Notice of Rescheduled Closing Date letter for 117 Kings Street and a delivery verification sheet. Exhibit I is a Notice of Rescheduled Closing Date letter for 115A Kings Street and a delivery verification sheet. Exhibit J is described as copy of email from Andrew Kao, Esq., plaintiff's attorney, to Martin Shaw dated December 4, 2017. Exhibit K is described as a copy of an email from Allen Schifino to Andrew Kao, Esq. dated December 4, 2017. Exhibit L is a copy of an email from Andrew Kao, Esq. to Allen Schifino dated December 7, 2017. Exhibit M includes the following documents: a copy of a letter from Martin Shaw dated December 7, 2017; a Notice of Rescheduled Closing Date for 115A King Street; a 10 day Notice to Cure letter for 117 King Street dated December 7, 2017; and a courier invoice dated December 8, 2017. Exhibit N includes the following documents: a copy of a letter from Martin Shaw dated December 11, 2017; a 10 day Notice to Cure letter for 115A King Street dated December 8, 2017; a Notice of Rescheduled Closing Date for 115A King Street; and a courier invoice dated

December 29, 2017.

Exhibit A annexed to Reyes' affidavit is a copy of a 30 day Notice of Closing date letter for 117 Kings Street signed by Zampedri. It also includes a document described as proof of delivery and a letter dated May 23, 2017 signed by Martin Shaw. Exhibit B is a copy of a 30 day Notice of Closing date letter for 115A Kings Street signed by Alessandro Zampedri. It also includes a document described as proof of delivery and a letter dated May 23, 2017 signed by Martin Shaw. Exhibit C is a duplicate of Exhibit E annexed to Zampedri's affidavit. Exhibit D is a duplicate of Exhibit I annexed to Zampedri's affidavit. Exhibit F is a copy of a 10 Day Notice to Cure letter dated December 7, 2017. Exhibit G is described as an invoice for the 117 Kings Street Notice to Cure demonstrating delivery on December 7, 2017. Exhibit H is a copy of a 10 day Notice to Cure letter dated December 8, 2017. Exhibit I is described as an invoice for the 115A Kings Street Notice to Cure demonstrating delivery on December 11, 2017.

Plaintiff's cross motion papers include an affirmation of counsel, an affidavit, and four annexed exhibits, labeled 1 through 4. Exhibit 1 is a copy of the Contract Amendment for 117 King Street, Brooklyn, New York. Exhibit 2 a copy of the Contract Amendment for 115A King Street, Brooklyn, New York. Exhibit 3 is a copy of an unsigned mortgage commitment letter from Rural Route 3 Holdings, LP dated December 28, 2017. Exhibit 4 is a copy of property listing from Zillow.com for 117 King Street, Brooklyn, New York and 117A King Street, Brooklyn, New York.

BACKGROUND

On December 19, 2017, AHI commenced the instant action seeking, inter alia, specific performance of two contracts for the sale of real property by electronically filing a summons with notice and order to show cause with the Kings County Clerk's office. On January 5, 2018, AHI electronically filed a verified complaint and two notices of pendency. On March 23, 2018, KEP interposed an answer.

AHI's complaint contains eighty-nine allegations of fact in support of ten causes of action. The action pertains to the alleged breach of contract for two distinct properties located at 117 Kings Street, Brooklyn, New York (hereinafter 117 Kings property) and 115A Kings Street, Brooklyn, New York (hereinafter 115A Kings property). The first five causes of action pertain to the breach of contract for the sale of the 117 Kings property (hereinafter 117 agreement). The sixth through tenth causes of action pertain to the breach of contract for 115A Kings property [*2](herein after 115A agreement). The first, fourth, sixth, and ninth causes of action seek specific performance; the second and seventh causes of action seek injunctive relief; the third and eighth causes of action seek declaratory relief; and the fifth and tenth causes of action seek damages for breach of contract.

AHI's verified complaint alleges the following salient facts. On March 18, 2015, plaintiff entered into the 117 and 115A agreements with KEP. According to the agreements, the purchase price for each property was $2,340,092.00. Plaintiff deposited ten percent of the sale price for each property in an escrow account at Signature Bank. Plaintiff also alleges that the closing for the properties was to occur on or not less than 30 days prior written notice.

Furthermore, AHI alleges that KEP failed to provide written notice via personal service, registered, or certified mail with respect to the initial closing of the properties. Plaintiff also alleges that the defendant was required but failed to deliver a certificate of occupancy by December 31, 2016 pursuant to the subject purchase agreements, later amended via rider to June 30, 2017. The defendants obtained the temporary certificates of occupancies (hereinafter TCOs) in November 2017. Plaintiffs also allege that after the TCOs were obtained the defendants did not provide timely notice of the closing.

On March 29, 2018, defendant KEP filed the pending motion pursuant to CPLR 3212 for an order granting summary judgment in its favor dismissing plaintiff's complaint with prejudice and cancelling the notices of pendency.

On April 19, 2018, AHI filed the pending cross motion pursuant to CPLR 3212 for an order granting summary judgment in their favor on the causes of action for declaratory judgment, breach of the covenant of good faith and fair dealing, breach of contract and specific performance.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]).

KEP's CPLR 3212 Motion to Dismiss the Complaint

KEP alleges that it fully complied with the notice procedures and other relevant provisions as required under both the 117 and 115A agreements. In particular, KEP claims that it properly notified AHI of the closing dates that were set for each property and that AHI defaulted by not appearing on either closing date.

A defendant seller seeking summary judgment must demonstrate the absence of any issues of fact regarding whether the buyer was ready, willing and able to close in accordance with the contract of sale (Jian Yun Guo v Azzab, 162 AD3d 754 [2nd Dept 2018]). In the instant motion, KEP contends that no material issues of fact exist regarding the valid termination of each of the purchase agreements. In support of this contention, KEP has submitted, inter alia, the affidavits of Zampedri, its manager; and Reyes, the office manager of its counsel. KEP has annexed a copy of its receipts from the United States Postal Service which demonstrate that there [*3]were two mailings sent by certified mail, one to AHI directly on May 23, 2017, at the address set forth in the purchase agreements, and one to AHI's counsel at that time [FN1] on May 17, 2017. It also annexes a copy of the United States Post Office web page printout delivery notification. KEP contends that the notices were in compliance with the Article 23 notice provisions of the 117 and 115A purchase agreements. Each agreement contains the identical language regarding notice set forth below:

Any notice or other communication ("Notice") shall be in writing and shall

be delivered personally, or given in writing, by registered or certified mail, return receipt requested, postage prepaid, and if sent to Purchaser, addressed to Purchasers' address given in this Agreement (with copy, if requested to Purchaser's attorney)

While, KEP has annexed a return receipt request card from AHI's attorney no such return receipt request card was annexed for proof of delivery to AHI directly. Furthermore, the copy of the web page does not specify to whom the notice was delivered or where the notice was delivered.

Zampedri has acknowledged that KEP received no response from AHI regarding the notice letters sent in May 2017. Nevertheless, KEP had not yet received the TCOs at the time it allegedly sent the notices. Material issues of fact remain on whether KEP complied with all the contractual notice requirements. Thus, KEP has failed to establish that AHI was not ready, willing and able to close within a reasonable time in accordance with the purchase agreements (see Pesa v Yoma Dev. Group, Inc. 18 NYS 3d 527 [2012]).

KEP's Motion for a Declaratory Judgment

CPLR 3001 provides that "[t]he supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed" (see Peters v Smolian, 154 AD3d 980, 983 [2nd Dept 2017] citing CPLR 3001). "To constitute a 'justiciable controversy,' there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect" (see Cong. Machon Chana v Machon Chana Women's Inst., Inc., 162 AD3d 635 [2nd Dept 2018] quoting Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2nd Dept 2010]). Thus, a seller seeking a declaration that the buyer defaulted under the contract of sale and that the seller is entitled to retain the down payment as liquidated damages must also make a prima facie showing that the seller was ready, willing , and able to perform on the law day (Jian Yun Guo, 162 AD3d at 754). Evidence that a buyer failed to appear at a time-of-the-essence closing may demonstrate prima facie entitlement to judgment as a matter of law (see Id.).

In addition to summary judgment, KEP also seeks a declaratory judgment stating that the purchase agreements were validly terminated and KEP should be permitted to retain the deposits paid by AHI. KEP alleges that it properly served AHI thirty days notice of the first closing date on June 27, 2017. KEP contends that it exercised its right to adjourn the first closing date because they were unable to obtain the TCOs and because of AHI's failure to respond to the June 27, 2017 closing notice. After the TCOs were obtained in November 2017, KEP sent a subsequent notice advising AHI that the closings were rescheduled to December 5, 2017 for 117 King Street and December 8, 2017 for 115A King Street. Following AHI's non-appearance at the December 5th and 8th closings, KEP sent AHI separate ten day notice to cure letters for each property dated December 7 and December 8, 2017, respectively. KEP relies on Article 21(b) of the purchase agreements entitled 'Defaults and Remedies' which states in relevant part that:

Upon the occurrence of an Event of Default, if the Seller does not elect,

in writing, to extend the Closing Date so as to give Purchaser additional time to cure such Event of Default, Seller's sole right shall be to cancel this Agreement by sending Purchaser [*4]ten (10) days prior to written notice of its intention to do so. If Seller elects to cancel, Purchaser shall have ten (10) days to cure the specified default. Time is of the essence to remedy such default within said ten day period. If the default is not timely cured, then Seller shall have the right to retain, as and for liquidated damages, the down payment...

KEP claims that AHI failed to cure the default. KEP, further, argues that these facts support their claim to retain the down payment.

In opposition, AHI contends that KEP failed to provide proper notice of June 2017 closing date because the notices were not sent via certified mail, return receipt requested. AHI also alleges that KEP was not ready and was unable to close in June 2017 because as of that time KEP had not yet obtained the TCOs as required by the purchase agreements. In addition, AHI contends that the December 5th and 8th closings were improperly scheduled as the time set forth for closing was too short from the notice date.

AHI further contends it never properly received the June 2017 notice. From AHI's perspective, the first notices it received were in December 2017 by hand delivery. According to the purchase agreements, AHI contends that the closing date should have been no less than thirty days from when the notice was given.

Summary judgment is an accelerated remedy that obviates the need for a trial, it must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable (see Fairlane Fin. Corp. v Longspaugh, 144 AD3d 858, 859 [2nd Dept 2016]). "Even the color of a triable issue forecloses the remedy" (see Id., quoting Rudnitsky v Robbins, 191 AD2d 488, 489 [2nd Dept 1993]). Here, the allegation that KEP's failure to obtain the TCOs in June 2017 resulted in their non-performance of the purchase agreements remains an open issue (see Pesa, 18 NYS3d at 534). For all the reasons set forth above, KEP has not eliminated all material issues of fact as to whether it complied with the 117 and 115A purchase agreements. AHI has successfully raised several issues of fact regarding KEP's non compliance.

Moreover, as plaintiff has correctly stated the action is in its infancy as documents have not been exchanged, depositions have not been taken, nor has a preliminary conference been scheduled. Therefore, KEP's motion for summary judgment is denied.

AHI's CPLR 3212 Cross Motion

We now turn to AHI's cross motion for summary judgment. AHI seeks summary judgment in its favor on the causes of action for declaratory judgment, specific performance, breach of contract, and breach of the covenant of good faith and fair dealing. To prevail on a cause of action for specific performance or to recover damages for breach of contract for the sale of real property the plaintiff purchaser must demonstrate that he or she was ready, willing and able to perform on law day (see Mendoza v Sterling Properties, Inc. 162 AD3d 879 [2nd Dept 2018]; see also Jian Yun Guo, 162 AD3d at 754). The purchaser must establish that but for the seller's repudiation, the transaction could and would have closed (see Pesa, Inc, 18 NYS 3d at 527). Furthermore, the purchaser must submit evidence demonstrating its financial ability to purchase such property (see Grunbaum v Nicole Brittany, Ltd., 153 AD3d 1384, 1385 [2nd Dept 2017]). "When a purchaser submits no documentation or other proof to substantiate that it had the funds necessary to purchase the property, it cannot prove, as a matter of law, that it was ready, willing, and able to close" (see Id. quoting Fridman v Kucher, 34 AD3d 726 [2nd Dept 2006]).

In support of its claim, AHI has submitted the affirmation of its counsel, Andrew Kao (hereinafter Kao) and the affirmation of its principal, Heliosa Rocha (hereinafter Rocha). Kao refers to an annexed copy of an unsigned mortgage commitment letter dated December 28, 2017 as proof that AHI was financially able to purchase the property. Kao's affirmation demonstrates no personal knowledge of any of the facts nor does he allege that he was the transactional attorney for either purchase agreement. On a motion for summary judgment, a "bare affirmation of an attorney, who demonstrates no personal knowledge of the matter, is unavailing and without evidentiary value" (see Winter v Black, 95 AD3d 1208 [2nd Dept 2012]).

Rocha's affirmation does not refer to the afore-mentioned letter nor present any evidence of AHI's financial ability to close. Therefore, AHI is unable to demonstrate prima facie entitlement to summary judgment as a matter of law. Consequently, the Court need not reach the sufficiency of KEP's opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). AHI is unable to conclusively prove their financial ability to purchase the property (see Pesa, 18 NYS3d at 534).

Breach of the Implied Covenant of Good Faith and Fair Dealing

AHI also alleges that KEP violated the covenant of good faith and fair dealing by frustrating the contractual provisions. Although a party may not be in breach of its express contractual obligations, it may be in breach of the implied covenant of good faith and fair dealing when it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain (see Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 770 [2nd Dept 2017]). A plaintiff must demonstrate that the party sought to prevent performance of the contract or to withhold its benefits from the plaintiff (see Aventine Inv. Mgt., Inc. v Can. Imperial Bank of Commerce, 265 AD2d 513, 513—14 [2nd Dept 1999]).

However, a party's intent to act in bad faith is usually a factual question for a jury.

Here, where AHI cannot demonstrate it was ready to close on law day, then it is unable to remove all material facts as to whether KEP was acting in bad faith. Therefore, AHI is unable to make a prima facie showing of their entitlement to summary judgment as a matter of law

Plaintiff's Motion For Interest, Costs, Disbursements and Attorney's Fees

AHI also seeks an order granting interest, costs, attorney's fees, and disbursements. CPLR 2214 (a) provides that a notice of motion shall "specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (see Abizadeh v Abizadeh, 159 AD3d 856, 857 [2nd Dept 2018]).

Furthermore, under CPLR 5001, prejudgment interest upon damage awards in specified categories of actions at law, such as breach of contract actions, is to be computed, generally, from "the earliest ascertainable date the cause of action existed" (CPLR 5001 [a],[b]). CPLR 5001 also vests courts with discretion as to the award of prejudgment interest in actions of an equitable nature (Mahoney v Brockbank, 142 AD3d 200, 202 [2nd Dept 2016]).

Additionally, CPLR 8106 provides that costs upon a motion may be awarded to any party, in the discretion of the court, and absolutely or to abide the event of the action. CPLR 8101 provides that the party in whose favor a judgment is entered is entitled to costs in the action, unless otherwise provided by statute or unless the court determines that to so allow costs would not be equitable, under all of the circumstances. The party to whom costs are awarded is entitled to recover reasonable and necessary expenses as are taxable according to course and practice of the court, by express provision of law or by order of the court (CPLR 8301[a]). Generally, counsel fees are incidents of litigation and a prevailing party may not be recovered unless an award is authorized by agreement between the parties, by statute, or by court rule (see Specialized Products and Services, Inc.v Steelbro Intl. Co., Inc., 161 AD3d 1127 [2nd Dept 2018] citing A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]).

Here, AHI has offered no factual or legal basis for an award of attorney's fees (see CPLR 2214 [a]). Moreover, they have not obtained a judgment in their favor on any branch of the instant motion and are, therefore, not entitled to pre-judgment interest pursuant to CPLR 5001, costs pursuant to either CPLR 8101 or 8106, and disbursements pursuant CPLR 8301.

CONCLUSION

King Equity Partners LLC's motion for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing AH Investimentos Corp.'s complaint is denied.

King Equity Partner's request for an order cancelling the two notices of pendency filed by plaintiff is denied.

AH Investimentos Corp.'s request for an order on its first cause of action declaring ineffective and directing the defendant to rescind the contract termination or, in the alternative, an order declaring the termination to be null and void and of no force or effect and compelling [*5]King Equity Partners LLC's to convey to plaintiff title to the 117 Property in compliance with the 117 Agreement is denied.

AH Investimentos Corp.'s request as to its third cause of action for a declaration that the defendant's right to terminate the 117 Agreement is limited to circumstances where defendant satisfies the conditions precedent to plaintiff's performance is denied.

AH Investimentos Corp.'s request as to its fourth cause of action a declaration that the time within which plaintiff is to perform pursuant to the 117 Agreement be tolled until such time as defendant complies with their obligation under the 117 Agreement is denied.

AH Investimentos Corp.'s request for a judgment on its fifth cause of action against defendants in an amount to be determined at trial, but estimated to be at least $234,092.00, together with punitive damages, applicable interest, costs, and attorney's fees is denied.

AH Investimentos Corp.'s request for an order on its sixth cause of action declaring ineffective and directing defendant to rescind the contract termination or, in the alternative, an order declaring the termination to be null and void and of no force or effect and compelling the defendant to convey to the plaintiff title to the 115A Property in compliance with the 115A Agreement is denied.

AH Investimentos Corp.'s request as to its eight cause of action a declaration that the defendant's right to terminate the 115A agreement is limited to circumstances where defendant satisfies the conditions precedent to plaintiff's performance is denied.

AH Investimentos Corp.'s request as to its ninth cause of action, a declaration that the time within which plaintiff is to perform pursuant to the 115A Agreement be tolled until such time as defendant complies with their obligation under the 117 Agreement is denied.

AH Investimentos Corp.'s request for a judgment on its tenth cause of action, judgment against defendants in an amount to be determined at trial, but estimated to be at least $234,092.00, together with punitive damages, applicable interest, costs, and attorney's fees is denied.

Finally, AH Investimentos Corp.'s request for interest, costs, attorney's fees, and disbursements in connection with this action is denied for the reasons set forth above.The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C. Footnotes

Footnote 1: Cinotti LLP is listed as attorney for the purchasers, AHI in the 117 and 115A purchase agreements signed in March 2016.