Plaintiff Ronit D. Appel, an attorney who is representing herself in this matter, moves pursuant to CPLR 3212 for partial summary judgment against defendant Howard Goldberg, contending that defendant breached a contract to sell his condominium apartment unit to plaintiff and that she is entitled to a full refund of her contract deposit, including accrued interest, plus $750, representing the cost of her title search. Goldberg is now representing himself and opposes the motion.

Appel, as buyer, and Goldberg, as seller, entered into a December 3, 2009, contract for the purchase of apartment 2C at a residential condominium building located at 235 West End Avenue in Manhattan for the sum of $623,000. When the contract was signed, plaintiff delivered a 10% deposit (the "deposit") in the amount of $62,300 to be held in escrow by defendant Giddins Claman LLP as escrow agent.

Appel applied for a mortgage pursuant to the contract. The closing date for the sale of the apartment was originally scheduled for January 26, 2010. At Goldberg's request, Appel agreed to postpone the closing to February 2, 2010. The bank was not ready to close Appel's loan on February 2, 2010, so the closing was moved to February 10, 2010.

On February 4, 2010, Lady Villa ("Villa"), the applications processor at the managing agent of the condominium, submitted a completed questionnaire that was required by the bank. On February 5, 2010, the bank informed Villa that its Condo Approval Department could not approve the loan unless she submitted an amended budget with a line item expense for reserves that equals at least 10% of the total annual income of the condominium. On February 8, 2010, the Condominium's managing agent informed the bank that the budget was approved by the board "as-is and cannot be amended."

On February 9, 2010, Appel sent the Giddins defendants notice that the bank did not approve the loan and, therefore, could not provide her with a mortgage for the apartment. Appel thus demanded return of the downpayment and cancellation of the contract. [*2]

In a February 12, 2010 e-mail, the defendants informed Appel that, in accordance with paragraph 16 of the contract, they would not return the downpayment to her because Goldberg had objected to its release. Giddins set a time-of-the-essence closing date for Friday, February 26, 2010, at noon.

In a February 19, 2010 letter, Giddins noted the mistake in scheduling the time-of-the-essence closing on a Friday, and he informed Appel that he was amending the time-of-the-essence notice and changing the closing date to March 2, 2010. Appel states that she rejected the attempted postponement of the closing date, but Giddins nonetheless proceeded as though the closing would take place on March 2, 2010. By a letter dated March 5, 2010, Goldberg, through the Giddins defendants, declared Appel in default of the contract for her failure to appear at the March 2 time-of-the-essence closing.

The failed real estate transaction spawned this litigation, which was commenced in March 2010. Appel sought return of her deposit plus additional damages, alleging economic and emotional injuries. Howard Goldberg and Paul M. Giddins and Giddins & Claman, LLP a/k/a Giddins Claman LLP (collectively the "Giddins defendants") were named as defendants. Goldberg interposed a counterclaim seeking, inter alia, the right to retain the deposit.

Motion practice ensued before Justice Sherwood. Appel moved to dismiss Goldberg's counterclaims. The Giddins defendants cross-moved to dismiss all claims asserted by Appel.

In a memorandum opinion dated August 3, 2010, Justice Peter Sherwood dismissed Goldberg's counterclaim asserted against Appel. All causes of action brought against defendants Paul M. Giddins and Giddins & Claman, LLP a/k/a Giddins Claman LLP were dismissed. The Court further directed the escrowed funds be deposited into court.

Thereafter, by order dated February 2, 1012, this Court granted plaintiff's motion ordering release of the monies that had been deposited in court to Appel. The record establishes that the Department of Finance returned $61,054.00 of the $62,300.00 contract deposit to plaintiff on March 29, 2012. The figure reflects the five percent retained by the Department of Finance.

Appel appealed that branch of the motion which had denied her the full amount of the contract deposit and interest. The Appellate Division held that plaintiff's remedy was to proceed with her breach of contract claim against Goldberg (Appel v. Goldberg, 105 AD3d 517 [1st Dept 2013]).

Appel now moves for partial summary judgment seeking the full amount of her contract deposit of $62,300.00 less the $61,054.00 received from the sum deposited with the Department of Finance, with statutory interest on the full amount of the deposit of $62,300.00 from February 9, 2010; and $750.00 for the cost of her title search with interest from February 9, 2010.

Discussion

The standards for summary judgment are well settled. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York University Medical Center, 64 NY2d 851, 853 [1985]). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion (Id.) Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Moreover, summary judgment motions should be denied if [*3]the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining (see Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v. J.C. Duggan, Inc., 180 AD2d 579, 580 [1st Dept., 1992], citing Assaf v. Ropog Cab Corp., 153 AD2d 520, 521 [1st Dept., 1989]). The court's role is "issue-finding, rather than issue-determination" (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] (internal quotations omitted)).

CPLR 3212(b) authorizes this Court to search the record and grant summary judgment to a nonmoving party, without the necessity of a cross-motion. "A court entertaining a motion for summary judgment may search the record and, if appropriate, grant summary judgment to the nonmoving party on any related claim, and this prerogative may be exercised even on appeal" (Siegel Consultants, Ltd. v. Nokia, Inc., 85 AD3d 654, 656-657 [1st Dept., 2011] (internal quotation marks and citation omitted)).

In the instant matter, it is clear to the Court that plaintiff's claims are related, for all claims arise from a single failed closing. Accordingly, although plaintiff is moving for partial summary judgment on the first, second, and eleventh causes of action, the Court in its discretion will search the record to determine whether Goldberg is entitled to summary judgment on any of the remaining causes of action.

In her first and second causes of action, plaintiff seeks a full refund of the contract deposit, including statutory interest from February 9, 2010, the date on which she requested that Goldberg return her deposit.

The three issues the Court must decide are: 1) whether Goldberg has a contractual obligation to pay plaintiff the remaining $1,246.00 of the deposit; 2) whether plaintiff is entitled to an award of statutory interest; and 3) whether plaintiff is entitled to interest from the date she first demanded a refund from Goldberg.

Justice Sherwood's memorandum opinion is law of the case. The opinion states in pertinent part:

The documentary evidence submitted by Appel establishes that the bank provided Appel a conditional commitment and that ultimately the bank declined to give her a mortgage for the apartment because the financial information that it requested and received from the condominium's managing agent revealed that the condominium's budget failed to provide sufficient reserves to satisfy the bank. Although under paragraph 22(a) of the contract the purchaser agreed to assume the risk that certain conditions of the commitment imposed by the lender may not be met, the failure of the condominium to maintain sufficient reserves is not among them. The contract does not require that Appel find another lender to provide a substitute mortgage as Goldberg alleges at paragraph 17 of the counterclaim. Appel's motion to dismiss Goldberg's counterclaim should be granted.

(Memorandum Opinion dated August 3, 2010, pp. 5-6 (emphasis in original)).

Justice Sherwood found that the contract did not require Appel to find another lender to provide a substitute mortgage. Therefore, Goldberg breached the contract by refusing to return her deposit upon Appel's February 9, 2010 demand. Accordingly, Appel is granted summary [*4]judgment on her first and second causes of action.

In order to determine what damages Appel is entitled to recover, the Court must look to the contract. Section 13 of the agreement states in pertinent part as follows:

(b) If seller defaults hereunder, purchaser shall have such remedies as purchaser shall be entitled to at law or in equity, including, but not limited to, specific performance.

The object of compensatory damages is to make the injured party whole. Under the specific facts of this case, there is no basis for awarding equitable relief, for plaintiff has elected a remedy at law by seeking compensatory damages. Plaintiff is entitled to recover interest that accrued on the downpayment that was being held in escrow (Ansonia Realty Co. v. Ansonia Associates, 142 AD2d 514, 517 [1st Dept., 1988] see also J. D'Addario & Co., Inc. v. Embassy Indus., Inc., 20 NY3d 113 [2012] ( "[i]n breach of contract cases where the parties do not specify the exclusive remedy, CPLR 5001(a) requires that statutory interest be paid"). Here, the earliest ascertainable date the cause of action existed was February 9, 2010, when Appel demanded return of the deposit on the ground that the bank refused to fund the loan.

The third cause of action alleges that defendant Goldberg repudiated the contract by virtue of his failing to arrange for the removal of a lis pendens filed against the apartment prior to or at closing.

The fourth cause of action alleges that Goldberg repudiated the contract by virtue of his setting a time-of-the-essence closing on a day on which he was precluded from closing, pursuant to the terms of the contract.

The fifth cause of action alleges that Goldberg repudiated the contract by virtue of his failing to obtain the necessary payoff letters for the satisfaction of Goldberg's mortgages.

The record in this matter establishes that plaintiff did not purchase the condominium because the bank declined to fund the loan, and she invoked the right to cancel the contract. Plaintiff's contention that Goldberg repudiated the contract is, therefore, necessarily meritless. The court searches the record and dismisses the third, fourth and fifth causes of action with prejudice.

The sixth cause of action alleges that plaintiff signed the contract based upon a fraudulently-induced unilateral mistake that the lis pendens would be removed prior to closing and is, thus, entitled to rescission of the contract.

On this record, recession is not available because plaintiff exercised her rights under paragraph 22 to cancel the contract when the bank refused to approve the loan. Accordingly, the sixth cause of action is dismissed with prejudice.

The eighth cause of action asserts that Goldberg made fraudulent misrepresentations in his capacity as a real estate agent. The complaint alleges that Goldberg breached his duties of disclosure as an agent by: a) not exercising reasonable skill and care in performing his duties; b) not dealing honestly, fairly, and in good faith; and c) not disclosing all facts known to him materially affecting the value or desirability of the apartment.

CPLR 3016(b) requires a plaintiff to plead with specificity the allegations underlying a cause of action for fraudulent misrepresentation (767 Third Ave. LLC v. Greble & Finger, LLP, 8 AD3d 75, 75 [1st Dept., 2004]). In short, we find that plaintiff has failed to allege fraudulent misrepresentation with sufficient specificity. In addition, the eighth cause of action is largely [*5]duplicative of plaintiff's breach of contract claims, and does not sufficiently allege an independent claim for fraudulent misrepresentation.

The eighth cause of action is, therefore, dismissed with prejudice for failure to state a cause of action with sufficient specificity. Even assuming that this cause of action is properly pled, plaintiff is not able to show any damages as a result of any alleged fraudulent conduct on the part of Goldberg. The closing did not take place because the bank refused to fund the loan, and plaintiff cancelled the contract.

The ninth cause of action seeks an award of compensatory damages representing the increase in market prices of apartments comparable to the apartment from the date of Goldberg's refusal to refund the deposit until the deposit is returned to plaintiff with interest. The tenth cause of action asserts that Goldberg has prevented plaintiff from purchasing another apartment and taking advantage of the governmental $8,000 first-time home buyer credit.

"In an action for breach of contract, the plaintiff can recover only such damages as are the natural and probable consequences of the breach complained of, or which can be reasonably said to have been foreseen or contemplated by the parties when the contract was made" (36 N.Y.Jur.2d Damages section 40).

In short, plaintiff cannot recover the damages sought in the ninth and tenth causes of action, for there is nothing whatsoever in the record demonstrating that damages of this nature were foreseeable and within the reasonable contemplation of the parties when they entered the contract. Nor were these damages a proximate cause of the breach of contract (see Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York, 10 NY3d 187 [2008]). Plaintiff had the right to purchase another apartment after the bank refused to fund the loan. Accordingly, the court searches the record and grants defendant summary judgment dismissing the ninth and tenth causes of action with prejudice.

The eleventh cause of action alleges that, pursuant to paragraph 18(d) of the contract, plaintiff is entitled to be reimbursed by Goldberg for the cost of her title insurance report, which cost $750.

Paragraph 18(d) states in pertinent part that

if seller shall be unable to convey the unit in accordance with this contract and if purchaser elects not to complete this transaction without abatement of the purchase price, the sole obligation and liability of seller shall be to refund the downpayment to purchaser, together with reasonable cost of the examination of title....

(Agreement of Sale, p. 11, para. 18(d)).

As the record reflects, it is undisputed that the bank failed to approve the loan, so plaintiff was unable to complete the transaction. Appel was not able to purchase the unit, so it is clear that Appel is not entitled to reimbursement under the unambiguous language of paragraph 18(d). The eleventh cause of action is dismissed with prejudice.

The twelfth cause of action asserts that plaintiff sustained "emotional damages" because Goldberg prevented plaintiff from "fulfilling her dream of owning a home."

"Generally, mental suffering resulting from a breach of contract is not an element of the compensatory damages recoverable in an action for such breach" (36 N.Y.Jur.2d Damages [*6]section 103). "Thus, a plaintiff is not entitled to recover damages for emotional distress pursuant to a breach of contract claim against the defendant, absent any showing that the defendant owed and violated any legal duty independent of the contract itself" (Id.). The twelfth cause of action is dismissed with prejudice.

Accordingly, it is

ORDERED that the motion for summary judgment on the first and second causes of action is granted, and the Clerk is directed to enter judgment in favor of plaintiff Ronit D. Appel and against defendant Howard Goldberg in the amount of $1,246.00, together with statutory interest at the rate of 9% to be calculated on the entire amount of the contract deposit in the sum of $62,300 from February 9, 2010; and it is further

ORDERED that, upon searching record, the Court awards partial summary judgment in favor of defendant Howard Goldberg dismissing all of the remaining causes of action with prejudice.

The foregoing constitutes the decision and order of the court.

Date: May 1, 2014______________________________

New York, New YorkAnil C. Singh