Rossa v RHR 160 LLC

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Rossa v RHR 160 LLC 2023 NY Slip Op 33230(U) September 14, 2023 Supreme Court, New York County Docket Number: Index No. 651027/2022 Judge: Lucy Billings 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. INDEX NO. 651027/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 41 ------------------------------------- ~--x ELIZABETH ROSSA, Plaintiff Index No. 65i027/2022 DECISION AND ORDER - against RHR 160 LLC, "JOHN DOE," NOS. 1 through 10, and "JANE DOE," NOS. 1 through 10, said names being fictitious and unknown to plaintiff but intended to be the recipients of any voidable transfers made by RHR 160 LLC, Defendants -------------------------------- --------xLUCY BILLINGS, J.S.C.: Plaintiff purchaser of a condominium unit at 160 Imlay Street, Kings County, claims defendant seller breached the parties' contract of sale executed September 20; 2021, by failing to remedy specified deficiencies in the construction of the unit and fraudulently misrepresented that defendant would construct and deliver the unit free of such deficiencies. Defendant RHR 160 LLC moves to dismiss plaintiff's breach of contract claims because the contract terms bar her claim for either specific performance to remedy the deficiencies or damages for the cost of repairing the deficiencies herself or the diminution in the unit's value. C.P.L.R. § 3211 (a) (1); Seaman v. Schulte Roth Zabel, 176,A.D.3d 538, 539 (1st Dep't 2019). & Since defendant preserved this defense in defendant's answer, its motion on this rossa923 [* 1] 1 2 of 5 INDEX NO. 651027/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/18/2023 ground is timely. C.P.L.R. § j211(e}. Defendant moves to dismiss plaintiff's fraud claim because .it d~plicate~ her breach of contract claim. C. P.L.R. Defendant cla § 3211 (a) (7}. that plaintiff's breach of contract claims fail because plaintiff elected to close the sale April 18, 202-2, despi the outstanding deficiencies and defendant's offer to cancel the sale before the closing. the Sel At that point, under ':II 41 of r's Rider to the contract of sa the contract merged , all obligations under o the deed conveying tit condominium unit and were extinguished. to the Specifically, ':II 41 provides that: "The acceptance by Purchaser of the deed at the Closing shall and be deemed to be full performance and discharge of every agreement and obl the Seller . . on the.part of ion . . except those, ~f any, which are specifically stated to survive Zalemka Ex. A ':II 41. Closing." \ in Aff. of Jonathan ,TIAA Global Invs., LLC v. One asteria Sg. LLC, 127 A.D.3d 75, 85 (1st Dep't 2b13). Paragraph 34 of the contract of sale further provides that, if the seller ~annot convey t le in accordance with the contract's provisions, the purchaser may accept whatever the seller can convey without liability on the seller's part. that event, which the obligation td In s the circumstances bere,,the seller retains cooperate with the purchaser to convey tit accordance with the cqntract, so this obligation survives the rossa923 [* 2] 2 3 of 5 in INDEX NO. 651027/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/18/2023 closing-··oTthe··sale arid delivery···of the c:!ee9.· Because 'II ·34·· releases defendant from liability, however, this provision , requires defendant to cooperate only to the extent defendant can do so without c_ost .. While performing repairs in plaintiff's unit may constitute cooperation in conveying the unit in accordance with the contract terms, plaintiff does not suggest- how defendant might accomplish s_uch cooperation without cost to defendant. P_laintiff's alternative claim for defendant's anticipatory breach or repudiation, seeking the same.relief as her straightforward breach of contract claim, fails for the same .. reasons, most fundamentally because plaintiff proceeded to perform her obligations under the contract despite defendant's refusal to finish the promised construction work. Defendant's anticipatory breach or repudiation relieved plaintiff from. performing her part of the contract, Princes Point LLC v. Muss Dev. L.L.C., 30 N.Y.3d 127, 133 (2017); µorcon Power Partners v. Niagara Mohawk Power Corp., 92 N.Y.2d 458, 462-63 (1998), but both parties agree that she performed her obligations. Defendant's disavowal of any intention to repair the remaining deficiencies in bonstruction constitutes its breach of the contract, but under '11'11 34 and 41, plainti{f_ waived her claim for any breach, except breach of defendant's obligation to cooperate, when she closed the sale. The court grants defendant's motion to dismiss plaintiff's rossa923 [* 3] 3 4 of 5 INDEX NO. 651027/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/18/2023 fraud claim because it alleges simply that defendant in entering the contract represented that defendant would deliver a condominium unit constructed in a specified way, with luxury fixtures and finishes, when defendant did not intend to ful that promise. A.D.3d 455, 11 Bloom v. Papadakis & Gonzalez D.D.S., PLLC, 211 45~ {1st Dep't 2022); 320 W. 115 Realty LLC v. All Bldg. Constr. Corp., 194 A.D.3d 511, 512 (1st Dep't 2021); Cronos Group Ltd. v. XcomIP, LLC, 156 A.D.3d 54, 62-63 (1st Dep't 2017). Moreover, to the extent plaintiff claims she was induced to enter the contract by any unfulfilled promises, another merger provision i n ! 24 of the contract extinguis~es this claim, too. Paragraph 24 provides that: ag-reements "All prior undertakings and . are merged in the Contract," and it "supersedes" all prior ·undertakings and agreements. Ex. A <JI Zalemka Aff. 24. Finally, plaintiff does not oppose defendant's motion to dismiss her fourth claim for a fraudulent conveyance. For all these reasons, the court grants defendant's motion to dismiss the complaint. DATED: C.P.L.R. § 3211(a) {1) and (7). September 14, 2023 LUCY BILLINGS, J.S.C. LUCY f5fLLiNGS J.S.C rossa923 [* 4] 4 5 of 5

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