Upon the foregoing papers it is ordered that the motion is granted.

Plaintiff commenced this action seeking a judgment declaring that he is entitled to retain the down payment given to him by defendant toward the purchase of a three-family home (the Home) owned by plaintiff in the City of Mount Vernon, New York. Following joinder of issue, but prior to conducting any pretrial discovery, plaintiff moves for summary judgment in his favor.

I. FACTUAL BACKGROUND

On April 5, 2004, plaintiff and defendant executed a contract of sale for the Home (the Contract), with the purchase price set at $417,500. The parties agreed that a closing on the sale would occur on or about April 30, 2004. Pursuant to the Contract, defendant paid plaintiff a down payment of $21,850.00, which represented approximately 5.2% of the purchase price.

Notwithstanding defendant's obligation to obtain a title report "promptly after the execution of th[e] [C]ontract" and to "cause a copy of [it] ... to be delivered to [plaintiff's] attorney[] ... promptly after receipt thereof" (Cavallaro Affirm., Exh.A, par.21), defendant did not serve a title report on plaintiff. Nor did defendant "communicate the status of his application for a mortgage commitment as required by Paragraph 8 of the Contract" (Cavallaro Affirm., par.8). Consequently, a closing was not held on April 30, 2004.

Seeking to move the transaction forward, on May 3rd ^[FN1], plaintiff's counsel, John D. Cavallaro, Esq., sent a letter by fax to defendant's attorney, J. Roger Rice, Esq., "requesting the status of [defendant's] mortgage commitment" (id., par.9).^[FN2] According to Cavallaro, he received no response to that letter. Cavallaro then sent another letter to Rice on May 14th (the May 14th Letter), advising him as follows:

"I have attempted to reach you several times by telephone. To date, the purchaser has not evidenced a mortgage commitment to the seller. The purchaser's mortgage contingency clause, wiht right of cancellation, has expired. Thus, seller anticipates a closing date on or before May 30, 2004." (Id., Exh.E).

Despite the May 14th Letter, no closing took place on May 30th.

By letter dated June 4th (the June 4th Letter), Rice notified Cavallaro that defendant was ready to close, but that "we have been informed that there are violations which must be cured" (Id., Exh.F). In the June 4th Letter, Rice asked Cavallaro to "contact me after the violations have been removed" (ibid.). Notably, there was no information provided with the letter as to [*2]the particular violations referred to by Rice.

On that same day, Cavallaro responded with a letter setting June 28, 2004 as a "time of the essence date" for the closing (the TOE Letter). In the TOE Letter, Cavallaro also stated that plaintiff was unaware of any existing violations against the Home and noted that defendant had yet to provide plaintiff with a copy of defendant's title report. Cavallaro maintains that he received no response to the TOE Letter between June 4th and June 28th.

When defendant failed to appear for the closing on June 28th, Cavallaro called Rice, who stated that defendant would not be appearing. Shortly after that call, Rice faxed a letter (the June 28th Letter) to Cavallaro declaring the TOE Letter void because of the existence of three "major violations on the [Home]", and demanding the return of the down payment (Id., Exh.H). Rice identified the violations (collectively hereinafter "the Noticed Defects") as: (1) "Two (2) Large Holes in Floor of Bathroom under sink and in front of toilet exposing beams and lower unit"; (2) Unsafe walking surface"; and (3) "Front yard debris" (ibid.). For the first time, Rice attached a copy of a "Notice of Violation" (the Violation Notice). As set forth in the Violation Notice, the owner of the Home was identified as "Chaim Longer". More importantly, the Violation Notice was dated April 13, 2004.

In response to the June 28th Letter, Cavallaro wrote to Rice on June 30th, declaring that defendant was in default under the Contract and that he had no basis to demand the return of the down payment. Because their dispute as to which of the parties was entitled to the down payment was not resolved, on November 29, 2005 plaintiff commenced this action by filing his summons and complaint.

In the complaint, plaintiff seeks a judgment declaring that he is entitled to retain the down payment. Defendant served an answer with a single counterclaim on January 3, 2006 seeking the return of the down payment to him.^[FN3]

As set forth above, following joinder of issue, plaintiff moves for summary judgment in his favor. Defendant opposes the [*3]motion, and while not cross-moving for summary judgment in his favor, he asks the Court to search the record and award him that relief.

In support of his motion, plaintiff has offered proof that he was ready, willing and able to close, that he set a reasonable time of the essence date for the closing, that defendant failed to close upon the sale of the Home, and that under paragraph 23(a) of the Contract he is entitled to retain the down payment as liquidated damages. That showing is sufficient to entitle plaintiff to summary judgment in his favor, thereby shifting the burden to defendant to demonstrate the existence of a factual issue requiring a trial of this action (see Ryan v. Corbett, 30 AD3d 1062,1063 [4th Dept. 2006]).

Defendant's opposition to the motion is founded upon three arguments, which the Court addresses in the order that it deems most logical. None of them is sufficient to warrant denial of the motion.

First, relying upon the identification of Chaim Longer as the owner of the Home in the Violation Notice, defendant asserts that "[a] threshold question here that [] must be posed is whether or not the plaintiff was in fact the owner of record on the date of the contract" (Kronick Affirm., par.5). Notably, other than the Violation Notice, defendant offers no evidence in support of his contention that plaintiff did not own the Home when the Contract was executed. Indeed, tellingly absent is the title search that was obtained by him ^[FN4] and which the Court would expect defendant to present if it supported his position. By contrast, in responding to this argument, in his reply papers plaintiff has offered proof from his title searcher, together with a copy of the deed transferring title of the Home to him, which establishes that there is no merit to defendant's argument.

Next, defendant questions the date that the Contract was executed. As discussed below, this is crucial to the determination of the challenge that is based upon the Noticed Defects. As explained by defendant's counsel, "[a]lthough the contract [] is dated April 5, 2004 that date can only be confirmed as the date of the contract' for the purposes of determining the viability even of paragraph 10 of the printed [*4]contract when accompanied by a photocopy of the down payment check or letter of transmittal of the fully executed contract" (id., par.14). Building upon that assertion, defendant argues that "[i]n the absence of such proof submitted by plaintiff, who could have elected to submit any despositive [sic] evidence of date he chose on [the Contract submitted as an exhibit]", "[w]e cannot truly conclude on what date the contract was fully executed", and in particular, "[w]e do not know if it was before or after April 13, 2004" (ibid.).

As plaintiff correctly notes, in response to a Notice to Admit served upon defendant, he conceded that the copy of the Contract which is before the Court on the motion is a true and accurate copy of the contract signed by him. Moreover, notwithstanding the musings of his attorney, defendant does not deny that the Contract was fully executed on April 5, 2004. Finally, in his answer to the complaint, defendant admitted that portion of paragraph 3 of the complaint, which states that "[o]n April 5, 2004 ... Plaintiff and Defendant entered into [the Contract]" (Cavallaro Affirm., Exh.B, Complaint, par.3). That admission in defendant's answer is a binding concession that the Contract was, in fact, executed on April 5th (Falkowski v. 81 and 3 of Watertown, Inc., 288 AD2d 890,891 [4th Dept. 2001] ["Facts admitted by a party's pleadings constitute judicial admissions" and any such fact "is thus not in controversy"] [internal citations omitted]). Therefore, this argument is similarly lacking in merit.

The third, and central, argument offered by defendant involves which of the parties was responsible to cure any defect in the Home which was the subject of a notice issued by a government entity. This obligation is at the core of their dispute because defendant's refusal to proceed to a closing is founded upon his contention that plaintiff was required to remedy the Noticed Defects as a condition to binding defendant to close on the sale of the Home. Plaintiff takes the opposite position, arguing that the plain language of the Contract placed the obligation to remedy the Noticed Defects upon defendant.

Paragraph 10(a) of the Contract (hereinafter "Paragraph 10[a]") provides that:

"Seller shall comply with all notes or notices of violations of law or municipal ordinances, orders or requirements noted or issued as of the date hereof by any governmental department having authority as to lands, housing, buildings, fire, health, environmental and labor conditions affecting the Premises. The Premises shall be conveyed free of them at Closing. Seller shall [*5]furnish Purchaser with any authorizations necessary to make the searches that could disclose these matters." (Cavallaro Affirm., Exh.A, par.10 [emphasis added]).

As both parties acknowledge, "the date hereof" referred to in Paragraph 10(a) is the date of the Contract. And as determined above, that date was April 5, 2004.

Relying upon the language of Paragraph 10(a), plaintiff maintains that he had no obligation to remedy the Noticed Defects because the date of the Violation Notice was April 13, 2004. Obviously recognizing the impact of the language of Paragraph 10(a), defendant attempts to create an ambiguity that, in his view, defeats plaintiff's argument.

According to defendant, this ambiguity follows from the language of Paragraph 24 (hereinafter "Paragraph 24") of the Rider to the Contract, which states, in relevant part, that:

"In the event that the cost of filing fees, permits, labor and materials required to comply with any Notices or Records of Violations that may exist and be Seller obligations under this Contract shall exceed the sum of $250.00, then Seller shall have the option: (a) of complying with said Notices of Violation without regard to the cost limitation set herein, or (b) of terminating and canceling this Contract, in which event the Seller or Escrowee shall return all the monies paid hereunder to the Purchaser, together with reasonable Title Insurance and Survey charges, if any, without further liability or obligation thereafter." (Cavallaro Affirm., Exh.A, Rider, par.24 [emphasis added]).

As viewed by defendant, "[t]his provision contains no limitation as to the date of discovery of or existence of violations limited as they were earlier noted in paragraph 10 of the printed portion of the contract", and "[t]his inconsistency must lead to the conclusion that notices of violations that existed anytime up to the delivery of the deed became the seller's obligation to rectify" (Kronick Affirm., par.10). Defendant then goes further, asserting that the purported inconsistency between Paragraph 10(a) and Paragraph 24 "belies the argument that this is an unambiguous document to which plaintiff is entitled to summary judgment" (ibid.). What is problematic for defendant is that there is no conflict between Paragraph 10(a) and Paragraph 24.

Under Paragraph 10(a), responsibility to cure any defect which is the subject of a notice of violation is allocated based upon the date that the violation is "noted or issued". [*6]Specifically, it is plaintiff's obligation to "comply with all notes or notices of violations" which are "noted or issued as of the date [of the Contract", i.e., April 5, 2004.

By contrast, as defendant correctly observes, Paragraph 24 does not create any time limitations for its application. Thus, plaintiff, as seller, is granted two options in the event that the cost of compliance with "any notices or records of violations that may exist" exceeds $250. Under those circumstances, plaintiff may either cure the defects or cancel the contract and return the down payment and the cost of certain expenses incurred by defendant.

If Paragraph 24 included no further language addressing the notices of violations to which it applies, the Court would agree with defendant that there is an inconsistency between that provision and Paragraph 10(a). What defendant conveniently overlooks, of course, is the limiting language set forth in Paragraph 24. That language restricts the application of Paragraph 24 to those "notices or records of violations" that are "sellers obligations under the contract". Since Paragraph 10(a) creates an April 5, 2004 cut-off date for placing the obligation upon plaintiff to cure any violation notices, by its plain language, the impact of Paragraph 24 is limited in time to that same April 5th date.

As defendant notes, it is the duty of the Court to determine whether or not a written agreement is ambiguous (W.W.W. Associates, Inc. v. Giancontieri, 77 NY2d 157,162 [1990]). In this case, having "examine[d] the entire contract and consider[ed] the relation of the parties and the circumstances under which it was executed" (Kass v. Kass, 91 NY2d 554,566 [1998] [internal quotation marks and citation omitted]), the Court concludes that Paragraph 10(a) and Paragraph 24 may be read together without any conflict or inconsistency between them. Therefore, because the Contract "is complete, clear and unambiguous on its face", it "must be enforced according to the plain meaning of its terms" (Greenfield v. Philles Records, Inc., 98 NY2d 562,569 [2002]). And consequently, defendant cannot avoid the determination that plaintiff was not obligated to cure the Noticed Defects.

Thus viewed, defendant has failed to meet the burden imposed upon him as the opponent of plaintiff's summary judgment motion. For that reason, plaintiff is granted summary judgment on his complaint, defendant's counterclaim is dismissed, and plaintiff is entitled to retain the down payment as his liquidated damages, as agreed to by the parties in paragraph 23(a) of the Contract [*7](Piano 230 North Corp. v. 230 North Realty, LLC, 304 AD2d 544,545 [2d Dept. 2003]).^[FN5]

WHEREFORE, it is

ORDERED that plaintiff's motion for summary judgment is granted; and it is further

ADJUDGED, ORDERED AND DECLARED that plaintiff is entitled to retain the down payment of $21,850.00 paid to him by defendant pursuant to the contract of sale dated April 5, 2004; and it is further

ADJUDGED, ORDERED AND DECLARED that John D. Cavallaro, Esq., the escrow agent designated to hold the aforesaid down payment, is directed to release the down payment to plaintiff within fifteen days of the date of entry of this decision and order; and it is further

ORDERED that defendant's counterclaim is dismissed.

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

September 4, 2007

HON. WILLIAM J. GIACOMO, J.S.C.

cc:

For Court purposes only: Final Disp: Yes

Appearance: No

Number of Motions: 1