157 Milton, LLC v Sheydvesser
Annotate this CaseDecided on August 20, 2018
Supreme Court, Kings County
157 Milton, LLC, Plaintiff,
against
Yakov Sheydvesser, DIANA SHEYDVESSER, and MICHAEL & SWERDLOFF, LLC as Escrowee, Defendants.
520417/16
Attorney for Plaintiff
Brockington Law Group, P.C.
Brian J. Brockington, Esq.
11 Broadway, Suite 568
New York, New York 10004
(212) 457-1545
Attorney for Defendant
John C. Castro, Esq.
82-11 37th Avenue, Suite 603
Jackson Heights, New York 11372
(718) 533-8090
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiff 157 MILTON, LLC (hereinafter plaintiff or Milton), electronically filed on June 8, 2018, under motion sequence number two, for an order pursuant to CPLR 3212: (1) granting summary judgment in its favor and finding that plaintiff may retain the down payment; (2) ordering defendant Michael & Swerdloff, LLC, in its capacity as escrow agent, to release the down payment to the plaintiff; and (3) ordering Yakov Sheydvesser and Diana Sheydvesser as buyers (hereinafter the buyers) to pay all associated lost profits and carrying cost based on the failed transaction.
-Notice of Motion
-Affirmation in support
-Affidavit in support
-Exhibits A to O
BACKGROUND
On November 17, 2016, Milton commenced the instant action for damages for breach of contract by filing a summons and complaint with the Kings County Clerk's Office. The complaint alleges in pertinent part that on September 24, 2012, Milton, as the seller, and Yakov Sheydvesser and Diana Sheydvesser, as the buyers, (hereinafter the buyers) entered into a contract for the sale of a newly constructed property known as 157 Milton Avenue, Staten Island New York, Block 4049 Lot 184, for a purchase price of $423,000.00 (hereinafter the subject contract). In accordance with the subject contract, the buyers deposited a down payment of $20,000.00 with Michael & Swerdloff, LLC, as the escrow agent. Milton sent the buyers a time of the essence letter setting a closing date for April 1, 2013. Thereafter, the buyers allegedly breached the subject contract by not appear on the closing date.
MOTION PAPERS
Plaintiff's motion papers consist of the notice of motion, an affirmation in support, an affidavit in support and fifteen exhibits labeled A through O. Exhibit A is a copy of the summons and complaint. Exhibit B is a copy of the subject contract. Exhibit C is described as a copy of the down payment in escrow. Exhibit D is described as a copy of a letter from the escrow agent dated September 24, 2012 acknowledging receipt of the buyers' down payment. Exhibit E is described as a copy of the time of essence letter dated March 1, 2013, advising of the closing date of April 1, 2013. Exhibit F is described as a copy of a Certificate of Occupancy for the subject property. Exhibit G is described as a copy of the buyers letter dated March 12, 2013, accepting the time of essence letter. Exhibit H is a copy of a letter from the buyers dated March 28, 2013 pertaining to the time of essence letter. Exhibit I is a copy of a letter dated March 28, 2013 by Milton's counsel to the buyers rejecting their letter attempting to withdraw the time of essence letter. Exhibit J is a copy of a letter dated April 1, 2013 from the buyers' counsel to Milton's counsel. Exhibit K is described as a copy of the certificate of payment from the New York State Lottery to Yakov Sheydvasser. Exhibit L, M and N are copies of the mortgage and deed for three properties located at 81 Baltic Avenue, 27 Finlay Street, and 223 Milton Avenue, in Staten Island, New York. Exhibit O is a copy of the deed of sale for the subject property.
The defendants have neither appeared for oral argument nor submitted written opposition to the motion.
LAW AND APPLICATION
Plaintiff seeks an order pursuant to CPLR 3212 granting summary judgment in its favor finding that the buyers have breached the subject contract. Based on the breach, the plaintiff seeks an order finding that it is permitted to keep the down payment and an order directing Michael & Swerdloff, LLC, the escrow agent, to give it to them. Plaintiff also seeks an order directing the buyers to pay all associated lost profits and carrying cost.
Summary Judgment
[*2]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]).
Summary Judgment as Against the Buyers
CPLR 3011 pertains to kinds of pleadings and provides as follows:
There shall be a complaint and an answer. An answer may include a counterclaim against a plaintiff and a cross-claim against a defendant. A defendant's pleading against another claimant is an interpleader complaint, or against any other person not already a party is a third-party complaint. There shall be a reply to a counterclaim denominated as such, an answer to an interpleader complaint or third-party complaint, and an answer to a cross-claim that contains a demand for an answer. If no demand is made, the cross-claim shall be deemed denied or avoided. There shall be no other pleading unless the court orders otherwise. A main purpose of CPLR 3011 is to state the instances in which a responsive pleading is required (David D. Siegel, New York Practice § 229, 6th Ed).CPLR Rule 3212 (a) provides, in pertinent part, that any party may move for summary judgement in any action after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.
Until 1996, the only time requirement for making a motion for summary judgment was that "issue has been joined" in the action. There was no outer limit until one was enacted in 1996. The moment of joinder of issue continues to be the earliest time for the making of a motion for summary judgment on the claim involved. If the motion is made against the plaintiff's cause of action, the service of the defendant's answer marks the joinder of issue; if its subject is a counterclaim, the service of the plaintiff's reply is the moment of joinder (David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:12). The requirement that issue be joined before a motion for summary judgment is granted is intended to show the court precisely what the plaintiff's claims and the defendant's position as to them, and his defenses, are and has been strictly adhered to (see Miller v Nationwide Mutual Fire Ins. Co., [*3]92 AD2d 723,724 [4th Dept 1983]).
It has been held that the motion does not lie before joinder of issue "[a]lthough the papers present no triable issue" (Milk v Gottschalk, 29 AD2d 698 [3rd Dept 1968]). It has also been held that the Supreme Court is powerless to grant summary judgment prior to joinder of issue (see CPLR 3212 (a); Union Turnpike Associates, LLC v Getty Realty Corp., 27 AD3d 725, 728 [2nd Dept 2006]).
A motion for summary judgment shall be supported by a copy of the pleadings (CPLR 3212[b] ) "The pleadings" means "a complete set of the pleadings" (Wider v. Heller, 24 AD3d 433, [2nd Dept 2005]) or "all the pleadings" (Welton v Drobniki, 298 AD2d 757 [3rd Dept 2002]).
Plaintiff's motion papers are silent on whether any of the defendants have answered the complaint. If they had not do so, they were required to so pursuant to CPLR 3011. Furthermore, the failure to do so would render plaintiff's summary judgment motion premature since issue has not yet been joined (Union Turnpike Associates, LLC v. Getty Realty Corp., 27 AD3d 725, 728 [2nd Dept 2006]).
If they had done so, the plaintiff did not annex their answer to the motion papers. By not annexing a copy of their answer to the motion, plaintiff did not meet its initial burden on the motion, thereby obviating any issue as to lack of or insufficiency of defendants' opposition papers (Welton v Drobniki, 298 AD2d 757 [3rd Dept 2002]).
Although the defendants did not oppose the motion, the requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, the motion should be denied on this basis alone (Thompson v Foreign Car Center, Inc. et. al., 40 AD3d 965 [2nd Dept 2007]). The denial, however, must be without prejudice to renewal (Green v Wood, 6 AD3d 976 [3rd Dept 2004] citing Welton v Drobniki, 298 AD2d 757 [3rd Dept 2002]).
Summary Judgment as Against the Escrow Agent
The second branch of plaintiff's motion seeks an order directing Michael & Swerdloff, LLC to return the subject down payment to the plaintiff. The allegations of fact in the complaint makes clear that Michael & Swerdloff, LLC is sued solely as the holder of the subject security deposit in its capacity as the escrow agent. This branch of the motion is premised on the presumption that plaintiff would have prevailed in demonstrating that the buyers breached the subject contract. Inasmuch as the issue of the buyers alleged breach is premature, this branch of the motion must also be denied without prejudice as premature.
Lost Profits
It is noted that plaintiff also seeks to recover damages for lost profits and carrying charges based on the buyers' alleged breach of the contract. In order to recover lost profits the plaintiff must show that: (1) the damages were caused by the breach; (2) the alleged loss must be capable of proof with reasonable certainty, and (3) the particular damages were within the contemplation of the parties to the contract at the time it was made (Ashland Management Inc. v Janien, 2 NY2d 395 [1993]; Family Operating Corp. v Young Cab Corp., 129 AD3d 1016 [2nd Dept 2015]).
The only sworn allegations of fact contained in the motion papers were the affirmation of plaintiff's counsel and the affidavit of one of plaintiff's members. The affirmation of plaintiff's [*4]counsel demonstrates no personal knowledge of any of the allegations of fact alleged in the complaint. It is therefore of no probative value (see Winter v Black, 95 AD3d 1208 [2nd Dept 2012]). The affidavit of Lyudmila Mak, a member of Milton is disregarded because, contrary to the requirements of CPLR 2102 [c], it does not contain a caption, the name of the court, the venue, the title or the index number of the action. Although the plaintiff annexed the subject contract, nothing contained therein indicated that lost profits and carrying charges would be compensable as damages in the event of the buyers' breach. Consequently, the plaintiff's motion papers have not establish that lost profits and carrying charges were within the contemplation of the parties to the subject contract at the time it was made. Accordingly, this branch of plaintiff's motion is denied for failure to make a prima facie showing of entitlement.
CONCLUSION
157 Milton, LLC's motion for an order pursuant to CPLR 3212 granting summary judgment in its favor and finding that plaintiff may retain the down payment is denied without prejudice.
157 Milton, LLC's motion for an order pursuant to CPLR 3212 granting summary judgment in its favor and ordering defendant Michael & Swerdloff, LLC, in its capacity as escrow agent, to release the down payment to the plaintiff is denied without prejudice.
157 Milton, LLC's motion for an order pursuant to CPLR 3212 ordering Yakov Sheydvesser and Diana Sheydvesser to pay all associated lost profits and carrying cost is denied.
The foregoing constitutes the decision and order of this Court.
Enter: August 20, 2018
J.S.C.
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