Okere v Brois

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Okere v Brois 2021 NY Slip Op 32011(U) June 22, 2021 Supreme Court, Westchester County Docket Number: 62735/2018 Judge: Terry Jane Ruderman 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] WESTCHESTER COUNTY CLERK 06/23/2021 08:36 AM NYSCEF DOC. NO. 136 INDEX NO. 62735/2018 RECEIVED NYSCEF: 06/22/2021 commence the statutory statutory time time for appeals appeals as of of right right To commence (CPLR 55 B[a]), 13[a]), you you are advised advised to serve serve a copy copy (CPLR of this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY COUNTY OF WESTCHESTER WESTCHESTER -------~ ---------:-- ------------- . -•- .-----------------~ ----- ---x --------~-----------~--~-----------------------------------~---------x HENRY C. OKERE OKERE and KAREN KAREN PORTER, PORTER, HENRY Plaintiffs, Plaintiffs, Index No. 62735/2018 Index No. 62735/2018 -against-against- TRIAL DECISION DECISION TRIAL THEODORE BROIS BROIS and HELENE HELENE BROIS, BROIS, THEODORE Defendants. Defendants. ----------------------------_---_-------------------x -------------------·~~~-··-·-·----- .--------- ---- . --------· ---. -----x RUDERMAN, RUDERMAN,J. J, Upon the trial trial conducted conducted in this this matter matter on May May 17, 17,2021 post-trial memoranda memoranda Upon 20211 1 and the posHrial submitted by counsel counsel on June June 14, 14,2021, this Court decides decides as follows: follows: submitted 2021, thisCourt Defendants Theodore Theodore Brois Brois and Helene Helene Brois Brois authorized authorized Concierge Concierge Auction, Audion, LLC, to Defendants conduct an auction auction of of their their property located at 3 Tallwoods Tallwoods Road Road in Armonk, Armonk, New York, by an property located New York, conduct agreement dated dated May. May. 21, 2018. 2018. The The Auction Auction Marketing Marketing Agreet1?,ent AgreelJ?entprovided that the auction auction agreement provided that "shall be conducted conducted without without reserve" reserve" and that that defendants, defendants, as sellers, sellers, "shall "shall be· be"obligated "shall obligated to sell the [property] to the highest highest bidder." bidder." That That agreement agreement included included a provision giving the sellers sellers the right right [property] provision giving to cancel cancel the the auction, auction, by written written notice notice of of cancellation cancellation and certain certain payments, payments, which which right right expired expired scheduled for trial, the the parties parties agreed agreed that that the submitted submitted documents documents On the date scheduled established the facts, except except for a small small amom1toftestimony amoullt of testimony by plaintiffOkere and some some established plaintiff Okere and discussion on the record record on the issue issue of of damages. damages. It was therefore therefore agreed agreed on the record record that that no discussion further testimony, and no cross-exarµination, cross-exarpination, was that the Court Court could could decide decide this further testimony, and was necessary, necessary, and that matter on the evidentiary evidentiary submissions submissions uploaded uploaded to NYSCEF, additional submission submission matter.based based ori NYSCEF, upon upon additional counsel of ofp9st-trial memoranda (an.done (and one short short agreed-upon agreed-upon affidavit affidavit providing by counsel p9st-trial memoranda providing information information regarding the real estate estate taxes taxes and hazard hazard insurance insurance premiums extent regarding premiums on the property). property). To the extent further new evidentiary materials were submitted in addition to those post-trial memoranda, those further new evidentiary materials w~re submitted addition those post-trial memoranda, those materials are improper, and they they have have not been considered in deciding deciding this materials improper, and been considered this matter. matter. 1 I 1 1 of 8 ~ r---------------------------------~ [*FILED: 2] WESTCHESTER COUNTY CLERK 06/23/2021 08:36 AM NYSCEF DOC. NO. 136 INDEX NO. 62735/2018 RECEIVED NYSCEF: 06/22/2021 p.m. on the day of of the auction. Defendants Defendants pre-executed of sale for the at 12:00 p.m. the auction. pre-executed a contract contract of property on June June 26; They also signed signed a document document entitled entitled an Auction Sale property 26; 2018. 2018. They Auction Sale Acknowledgment that the highest highest opening Acknowledgment on June June 26, 2018, 2018, acknowledging acknowledging that opening bid bid was was $1,500,000. $1,500,000. On June plaintiffs Henry Henry C. Okere participate in June 28, 2018, 2018, plaintiffs Okere and Karen Karen Porter Porter registered registered to participate auction, executing executing and submitting submitting the required required bidding documents, and wiring sum of of the auction, bidding documents, wiring the sum $100,000.00 as a bidding deposit to Boston Title Agency, Concierge required. required. At the $100,000.00 bidding deposit Boston National National Title Agency, as Concierge time ofthe auction on June June 29, 2018, 2018, the bid submitted submitted by plaintiffs declared the the winning time of the auction plaintiffs was was declared winning $1,605,000~00. In the days d~ys that that followed, wired the remainder remainder of of the contractual contractual bid, at $1,605,000:00. followed, plaintiffs plaintiffs wired down payment and and the auctioneer's July 2, 2018, they down payment auctioneer's fee, and on July 2,2018, they executed executed the contract contract of of sale, which was forwarded forwarded to defendants' defendants' attorney attorney on the same same date. which However, defendants had revoked offer before However, defendants took took the position position that that they they had revoked their their offer before an have expressed her desire enforceable Helene Brois Brois claims enforceable contract contract existed. existed. Helene claims to have expressed to Concierge Concierge her desire to cancel defendants' agreement property in accordance their agreement. cancel or revoke revok~ defendants' agreement to sell the property accordance with with their agreement. She asserts telephoned Concierge 2018, to state that she wanted wanted to asserts that that she telephoned Concierge on Friday, Friday, June June 29, 2018, state that revoke text messages day, Saturday, revoke her offer, offer, and and that that she sent sent text messages the the next next day, Saturday, June June 30, 2018; 2018; emails emails were also sent sent by Erik Erik Kukk, Concierge's representatives 2,2018, same were Kukk, Esq. to Concierge's representatives on July July 2, 2018, to the same effect. effect. The sale contract contract had had provided closing date of of July July 27, 2018. 2018. When that date The provided for a closing When that passed, 9n ~.mJuly 2018, counsel plaintiffs sent a letter letter to defendants'direcily, defendants"directly, declaring declaring time time passed, July 30, 2018, counsel for plaintiffs of new closing August 15, 2018. That That letter of the essence, essence, and setting setting a new closing date of of August 15,2018. letter was sent to defendants themselves themselves rather rather than than to counsel because defendants' attorney attorney had suffered a heart heart defendants to counsel because defendants' had suffered attack and was unable defendants at that defendants had attack unable to further further represent represent defendants that time, time, and defendants had not not 2 2 of 8 [*FILED: 3] WESTCHESTER COUNTY CLERK 06/23/2021 08:36 AM NYSCEF DOC. NO. 136 INDEX NO. 62735/2018 RECEIVED NYSCEF: 06/22/2021 provided the name name of of a new new attorney. attorney. On August August 2,2018, over the sum provided 2, 2018, plaintiffs plaintiffs turned turned over the sum remaining due on the contract, contract, $1,475,000.00 $1,475,000.00 to their their attorney attorney to be held escrow. remaining held in escrow. By letter August 9, 2018, new responded to the the Time Time of letter dated dated August 9,2018, new counsel counsel for defendants defendants responded of the Essence position that the Essence letter letter was was defective, defective, and further, Essence Letter, Letter, taking taking the position that the Time Time of oftheEssence further, ., that was no enforceable that there there was enforceable contract contract of of sale. Discussion Discussion The parties entered into an enforceable enforceable contract. The Parti~sentered contract. The Court rejects rejects defendants' defendants' contention contention that enforceablecontracr'could have come come The Court that no enforceable contract'could have existence unless unless and until mitil the plaintiffs countersigned the contract contract of of sale and delivered into existence plaintiffs countersigned delivered it to defendants, their counsel, their offer offer to sell. In the context defendants, or their counsel, prior prior to defendants' defendants' revocation revocation of of their selL In context of this this sale of of real property by auction, auction, without without reserve, reserve, where,defendants pre-signed a contract contract . of real property where defendants pre-signed ,\ of sale contalning all the the necessary' terms, with with the final final. sale price enforceCj.ble of sale containing necessary terms, price to be inserted, inserted, an enforceable auction. contract hammer came down time of contract was was formed formed when when the hall1mercame down at the time of the auction. The was not impacted post-auction The formation formation of of an enforceable enforceable contract contract was impacted by defendants' defendants' post-auction communications with with Concierge. Concierge. Defendants failed to establishestaj;)lish their; claim that validly Defendants failed their: claim that they they validly communications revoked the auction auction contract, contract, their offer to sell or the signed signed contract contract of sale. Helene revoked their offer of H~lene Brois's Brnis' s '\ [ \ . assertion that that she communicated communicated to Co~cierge Co~cierge her desire desire, to cancel cancel or revoke assertion revoke defendants' defendants' agreement to sell the property fails to provide basis relief.' To the extent extent agreement the property provide defendants defendants with with any basis for relief. -, ' she asserts telephone on Friday, Friday, June to state asserts that that contacted contacted Concierge Concierge by telephone June 29; 2018, 2018, to state that that she wanted she does ti111e when she made made such wanted to revoke revoke her offer, offer, she does not pinpoint pinpoint the til1}ewhen such a call; by referring in her her affidavit affidavit to the,period oftime "after the attempted attempted auction," auction," she appears referring the. period of time "after appears to indicate that it was after noon. noon. In any event, even timely communication telephone would would indicate that was after a.nyevent, even a timely communication by telephone 3 3 of 8 [*FILED: 4] WESTCHESTER COUNTY CLERK 06/23/2021 08:36 AM NYSCEF DOC. NO. 136 INDEX NO. 62735/2018 RECEIVED NYSCEF: 06/22/2021 have sufficed sufficed to revoke revoke defendants' not have defendants' offer, offer, since since any effective effective revocation revocation was was required required to be in ) writing, as well being made noon on the auction auction date, date. The The text text messages messages Helene Helene Brois Brois writing, well as being made before before noon sent the next Saturday, June June 30, 2018 sent next day, Saturday, 2018 were were also ineffective, ineffective, as were were emails emails sent sent byErik by Erik Kukk, representatives on July July 2,2018 2, 2018 to the same same effect. effect. None None of of those those Kukk, Esq. to Concierge's Concierge's representatives asserted or proved communications could asserted proved communications could have have properly, properly, timely timely or validly validly revoked revoked or withdrawn withdrawn defendants' offer offer to sell. defendants' Plaintiffs' rights of sale arose arose upon upon the acceptance acceptance Plaintiffs' rights to enforce enforce the fully~executed fully-executed contract contract of of their their bid, without of without reference reference to to the post-auction post-auction communications communications between between Concierge Concierge Auction Auction and defendants. immaterial whether whether or when when Concierge Concierge sent sent a fully-executed' fully-executed· defendants. Moreover, Moreover, it is immaterial contract to defendants; defendants; that contract that signed signed contract contract existed, existed, and and was enforceable, enforceable, before before a copy copy was was forwarded to defendants. defendants. forwarded Plaintiffs properly properly declared declared time of the essence. essence. Plaintiffs time of Counsel's letter dated July Counsel's letter dated July 30, 2018 2018 properly properly declared declared time time of of the essence. essence. Initially, Initially, it appropriate to mail was appropriate mail the letter letter directly directly to defendants, defendants, given given the heart heart attack attack suffered suffered by the attorney who who. had had represented attorney represented defendants. defendants. There There is no. no question question that that defendants defendants received received and and understood import of of the letter, letter, which which is confirmed confirmed by,the by the response response sent sent on August August 9, 2018 2018 understood the import by their their new new attorney. attorney. proper to set the closing 15,2018. It was also proper closing date for August August 15, 2018. Where Where a contract contract for the sale of provide that that time time is of of the essence, essence, both both the vendor vendor and and the of real property property does does not provide purchaser reasonable adjournment adjournment beyond beyond the closing closing date date to perform perform the purchaser are entitled entitled to a reasonable contract" (Levine (Levine v Sarbello, Sarbello, 112 AD2d 199-200 [2d Dept 1985], citing contract" AD2d 197, 199-200 Dept 1985], citing 62 NY NY Jur, Vendor Vendor and Purchaser,§ Weed, New New York York Real Real Property, Property, Adjournments Adjournments§§ 2.01, 2.05 Purchaser, S 37; 1 Warren's Warren's Weed, SS 2.01, 4 4 of 8 [*FILED: 5] WESTCHESTER COUNTY CLERK 06/23/2021 08:36 AM NYSCEF DOC. NO. 136 INDEX NO. 62735/2018 RECEIVED NYSCEF: 06/22/2021 Willdrdvv Mercer, [1983]). "What "What constitutes constitutes a reasonable [4th ed]; Willard Mercer, 58 NY2d NY2d 840 [1983]). reasonable time time for performance depends upon circumstances of of the particular case" (Zev v Merman, performance depends upon the facts and circumstances particular case" Merman, 73 NY2d [1988]). "Included "Included within a,court's determination of reasonableness are the nature nature NY2d 781, 783 [1988]). within a. court's determination ofreasonableness and object contract, the previous parties, the presence presence or absence object of of the contract, previous conduct conduct of of the parties, absence of of good good experience of of the parties either one, as parties and the possibility possibility of of prejudice prejudice or hardship hardship to either faith, the experience well as the specific specific number number of of days provided provided for performance" 783). "Where "Where the facts are well performance" (id. at 783). undisputed, what what is reasonable time time becomes question of of law" law" (Hegeman (Hegeman v Bedford, AD3d Bedford, 5 AD3d undisputed, is a reasonable becomes a question 632,632 2004]). 632, 632 [[Dept Dept 2004]). There unreasonable about notice given Eighteen days There was nothing nothing unreasonable about the sixteen sixteen days notice given here. Eighteen notice was considered considered reasonable reasonable in EC, L.L.c. LLC v Eaglecrest Eaglecrest Manufactured Manufactured Home Home Park, Inc. (275 notice AD2d 898 [[4th Dept 2000]); 2000]); fifteen notice was held reasonable in Sohayegh Sohayegh v AD2d 4th Dept fifteen days notice held to be reasonable Oberlander (155 AD2d 1989]); and five days' days' notice notice was considered considered reasonable AD2d 436 [2d Dept Dept 1989]); reasonable in Oberlander Guippone v Gaias, Gaias, 13 AD3d 339[2d Dept 2004]). 2004]). While While a short short period may be treated treated as Guippone AD3d 339 [2d Dept period may unreasonable if if the opposing opposing party provides a valid e.g .. unreasonable party provides valid reason reason for needing needing more more time time (see e.g RodriguesNBA, XV, LLC, LLC, 164 AD3d AD3d 1388, 1389 [2d Dept Dept 2018]), 2018]), when Rodrigues NBA, LLC LLC v Allied Allied.XV, when no valid valid objection is made made to a "time "time of of the essence" essence" re-scheduling ofthe closing, the other other side may may be re-scheduling of the closing, objection considered to have have acquiesced Westreich v Bosler, Dept 2013]). Here, acquiesced (see Westreich Bosler, 106 AD3d AD3d 569 [1st Dept 2013]). Here, considered not only only did defendants defendants fail to express express a viable additional time time before closing, but but there viable need need for additional before closing, there greater amount amount of of time time within within which defendants would would have have been was no greater whic.h defendants been ready ready and willing willing to close. Rather, Rather, the protests contained in the responsive defendants' present counsel, close. protests contained responsive letter letter by defendants' present counsel, dated August August 9, 2018, 2018, did not not involve involve an insufficiency insufficiency in the time time provided. provided. dated Nor did the August August 9,2018 defendants' attorney attorney state any other other valid valid grounds grounds for 9, 2018 letter letter by defendants' Nor did 5 5 of 8 [*FILED: 6] WESTCHESTER COUNTY CLERK 06/23/2021 08:36 AM NYSCEF DOC. NO. 136 INDEX NO. 62735/2018 RECEIVED NYSCEF: 06/22/2021 declining vague assertion that the letter letter was was defective failed to establish declining to close. close. Its vague assertion that defective failed establish any such grounds, between the parties parties was grounds, and its denial denial of of the existence existence of ofaa contract contract between was erroneous. erroneous. Plaintiffs they substantially substantially perfonned perfom1ed their Plaintiffs have have sufficiently sufficiently established established that they their own own contractual were ready, ready, willing willing and able to fulfill their remaining remaining obligations contractual obligations obligations and were fulfill their obligations on August 15, 2018 at 10:00 a.m., time set for closing Alba v Kaufmann, Kaufmann, 27 AD3d AD3d August 15,2018 a.m., the date and time closing (see Alba 816,818 2006], citing EMF Gen. Contr. C011J. Bisbee, 6 AD3d AD3d 45,51 45, 51 [1st Dept Dept 816,818 [3d Dept Dept 2006], citing EMF Corp. v Bisbee, 2004]). Plaintiffs also established breach, based based on their their refusal refusal to 2004 D. Plaintiffs established defendants' defendants' anticipatory anticipatory breach, accept their rejection plaintiffs' proposal proposal to close accept the existence existence of of the contract contract and their rejection of of plaintiffs' close on the scheduled circumstances, plaintiffs had no obligation obligation to scheduled time-of-the-essence time-of-the-essence date. Under Under such circumstances, plaintiffs had prove via via documents failure to appear prove documents defendants' defendants' failure appear at the scheduled scheduled closing. closing. Damages Damages As to the appropriate remedy of performance is appropriate award award of of damages, damages, "the "the equitable equitable remedy of specific specific perfonnance routinely awarded in contract contract actions each parcel of routinely awarded actions involving involving real property, property, on the premise premise that that each parcel of property is unique" Bisbee, 6 AD3d AD3d at 52). real property unique" (EMF (EMF Gen. Contr. Corp. v Bisbee, A particular presented here in addressing addressing damages, particular difficulty difficulty is presented damages, arising arising out out of of the two mortgages have been sufficient to fully pay pay off off those mortgages on the property. property. The sale proceeds proceeds would would have been sufficient those mortgages on the contract's contract's sale date - $ 921,341.38 921,341.38 on the first $501,670.77 on date-$ first mortgage mortgage and and $501,670.77 mortgages HELOC - but but defendants defendants defaulted defaulted in payment of those around the time the HELOC payment of those two mortgages mortgages at around time they contract, and and the sums sums now satisfy the liens convey clear they breached breached the sale contract, now due to satisfy liens and convey clear title title to significantly exceed exceed the the sale sale price price provided provided for in the the parties' contract. There There can can be the property property significantly parties' contract. question that that the the bank bank has has the the right right to have have the liens liens paid off in their their entirety entirety at the time time of of the no question paid off closing on the sale sale of of the property. This Court Court may may not not issue issue an order order that that "would "would violate violate the closing property. This 6 6 of 8 [*FILED: 7] WESTCHESTER COUNTY CLERK 06/23/2021 08:36 AM NYSCEF DOC. NO. 136 INDEX NO. 62735/2018 RECEIVED NYSCEF: 06/22/2021 \ rights third party pat1y whose whose interest interest in the equity equity is superior superior to [plaintiffs']" Strategic Value rights of of a third [plaintiffs']" (see Strategic [SD NY 2006], 2006], affd811 affd 811 Master Fund, Ltd. v Cargill Master Cargill Fin. Servs., Corp., Corp., 421 F Supp Stipp 2d 741, 760 [SDNY F2d 127 [2d Cir curiam], citing citing Joneil Joneil Fifth Fifth Ave. Ltd. v Ebeling Ebeling & Reuss Reuss Co., 458 F F2d Cir 1987] [per [percuriam], Supp NY 1978], citing Restatement Restatement of of Contracts Contracts§9368). 368). Therefore, Therefore, any Supp 1197, 1200 [SD [SDNY 1978], citing this action must simultaneously simultaneously provide provide that that plaintiffs plaintiffs are entitled entitled to take take title title to the resolution of resolution of this act~on must subject property from defendants the contract contract price price of of $1 $1,650.000.00, and that that the bank bank is subject property defendants for the ,650.000.00, and entitled have its liens liens fully satisfied closing on that that sale. Furthermore, Furthermore, defendants defendants are entitled to have satisfied at the closing parties who who are liable liable to the bank bank for the amounts amounts due on the mortgages mortgages in excess excess of of the the only only parties contract price. contract price. fommlate a resolution of this this dispute, dispute, the Court Court looks looks to Green Point Sav. Bank Bank v To formulate resolution of Green PointSav. Lilas Investing Investing Co. (124 AD2d AD2d 555,557 555,557 [2d Dept Dept 1986]). 1986]). There, There, the Second Department Litas Second Department awarded plaintiff-buyer specific perfom1ance although although the seller seller claimed claimed to be unable unable to awarded the plaintiff.buyer specific performance convey title at the scheduled scheduled closing, closing, as a result result of of additional additional encumbrances encumbrances on the property property convey clear clear title seller's own own business business dealings dealings post-contract post-contract.. in an amount that exceeded price, due to the seller's amount that exceeded the sale price, . "-, - The Court reasoned that that since since the seller The Court there there reasoned seller had had a contractual contractual obligation obligation to discharge discharge the liens liens and convey marketable title, title, and because because any professed professed inability inability to do so was was its own own convey clear clear and and marketable directed that that the defendant defendant should should doing, specific performance performance was was the appropriate appropriate remedy. remedy. It directed doing, specific "rais[e] money to payoff pay off the second second mortgage mortgage lien lien on th~ the premises premises and and convey[] convey[] clear clear title title to "rais[e] the money the plaintiff accordance with plaintiff in accordance with the contract" contract" (id. at 557). Accordiqgly, plaintiffs plaintiffs are entitled entitled to an award award of of specific specific p~rformance p~rformanceofthe contract of of Accordiqgly, of.the contract extent that that the the sale sale proceeds proceeds are insufficient insufficient to pay pay off off the the mortgage mortgage liens, liens, any any sale. To the extent additional sums sums that that must must be paid paid to the bank bank to fully fully satisfy satisfy the the liens. liens, are the the obligation obligation of of additional 7 7 of 8 J. [*FILED: 8] WESTCHESTER COUNTY CLERK 06/23/2021 08:36 AM NYSCEF DOC. NO. 136 INDEX NO. 62735/2018 RECEIVED NYSCEF: 06/22/2021 defendants, defendants must must be directed directed to make make such such payments. payments. Recognizing Recognizing the possibility possibility defendants, and defendants that defendants may profess inability to satisfy satisfy the mortgage mortgage liens liens at the closing, closing, this this Court's Court's that defendants may profess an inability judgment will will include include an alternative alternative directive, directive, as suggested suggested by plaintiffs: plaintiffs: in the event event defendants defendants judgment mortgage and HELOC HELOC at the closing, closing, theI).,to then, to the extent extent the sale proceeds proceeds do pay off the mortgage fail to payoff existing mortgages mortgages so not cover those liens, liens, plaintiffs plaintiffs are entitled, entitled, at their their option, option, to payoff pay off the existing cover those that they they may may take take the subject property with with clear clear title, title, and upon upon so doing, doing, they they will will be entitled entitled to that subject property enter money judgmentagainst judgment against defendants defendants in this this action, action, in the amount amount of of any enter a supplemental supplemental money such payment obtain clear such payment necessary necessary to obtain clear title, title, upon upon appropriate appropriate proof proof of of payment. payment. This Court that any other other money money judgment judgment is warranted. warranted. The The claim claim that that This Court is not convinced convinced that plaintiffs suffered suffered losses based on their plaintiffs losses based their need need to pay rent rent of$3,200 of $3,200 per per mOJ?-th, month, aass well well as utilities, utilities, cost of of a storage and the cost storage unit, unit, fails to entitle entitle them them to such a judgment. judgment. It is noted noted that that they they would would have paid utilities that the need have paid utilities in any event, event, that need for a storage storage unit unit was was not not shown shown to have have arisen arisen out out of the failure of the sale contract, contract, and that they of failure of they would would have have been been responsible responsible for significantly significantly more than those estate taxes taxes on the property, property, had had they they succeeded succeeded in more than those claimed claimed losses losses in real estate obtaining outset. obtaining it at the outset. Plaintiffs' application award of of attorney's attorney's fees is denied. denied. "Generally, attorney's Plaintiffs' application for an award "Generally, attorney's awarded absent absent an agreement fees may may not be, be awarded agreement between between the parties parties or a statute statute or court court rule authorizing them (Bloom Jenasaqua Realty Realty Holding Holding Co., 174 174 AD2d AD2d 644,645 644, 645 [2d Dept Dept 1991]; authorizing them (Bloom v Jenasaqua of A.G. [1986]). Plaintiffs see Matter Matter of A.G. Ship Ship Maintenance Maintenance v Lezak, Lezak, 69 NY2d NY2d 1 [1986)). Plaintiffs have have not alleged alleged or shown that that the the agreement agreement contained contained such such a provision. provision. shown Settle judgment. Settle judgment. ~·~~ ~ANERUDERMAN,J.S.C. , Dated: White White Plains, Plains, New York Dated: New York June 2'~1 2,~1 June '. ~~ 8 8 of 8 .T ANE RUDERMAN, J.S.C. I

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