Kenny v Tung (2014 NY Slip Op 51496(U))

[*1]

Kenny v Tung

2014 NY Slip Op 51496(U)

Decided on October 9, 2014

Supreme Court, Queens County

Dufficy, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 9, 2014

Supreme Court, Queens County

William Kenny, Plaintiff,

against

Lillian Tung and ROBERT PRIGNOLI, as Escrowee, Defendants.

8372/14

Plaintiff Kenny's counsel was Arnold W. Drucker, Esq., Jackson Heights, NY

Defendant Tung's counsel was Robert Prignoli, Esq., Staten Island, NY

Timothy J. Dufficy, J.

The following papers numbered 1 to 12 read on this application by defendant LILLIAN TUNG (Tung) for an order dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(1) and (a)(7) and (a)(10), and vacating the Notice of Pendency; and the

cross-motion by the plaintiff for an order granting leave to serve an Amended Summons and Complaint pursuant to CPLR 3025(b).

PAPERS

NUMBERED

Order to Show Cause-Affirmation-Exhibits .....................	41641
Affidavit of Service...........................................................	4
Notice of Cross-Motion and Opposition In Affirmation To Defendant's Motion-Exhibits .......................................	5-8
Affirmation in Opposition to Cross-Motion-Exhibits........	41892
[*2]Affirmation In Reply Defendant's Cross-Motion...............	12

Upon the foregoing papers, it is ordered that the application by defendant LILLIAN TUNG (Tung) motion is granted, in all respects, and the plaintiff's cross-motion is denied, in all respects.

The plaintiff brought this action seeking specific performance of a contract for the sale of real property, in Queens County. The contract was cancelled by the defendant Tung, and the validity of that cancellation is the issue in this motion brought by Tung to dismiss based on documentary evidence and failure to state a cause of action pursuant to CPLR §§3211(a)(1) and (a)(7).

"On a pre-answer motion to dismiss pursuant to CPLR §3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" (Granada Condominium III Assn. v Palomino, 78 AD3d 996 [2d Dept. 2010]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).

"On a motion to dismiss the complaint pursuant to CPLR §3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Bibbo v 31-30, LLC, 105 AD3d 791, 792 [2d Dept. 2013]; quoting Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2d Dept. 2008];

see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).

A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of NY,

98 NY2d 314, 326 [2002]; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d 923, 924-925 [2d Dept. 2014]). "The evidence submitted in support of such motion must be documentary or the motion must be denied" (Cives Corp. v George A. Fuller Co., Inc.,

97 AD3d 713, 714 [2d Dept. 2012]; see Fontanetta v John Doe 1, 73 AD3d 78, 84

[2d Dept. 2010]; see also David D. Siegel, Practice, McKinney's Cons Laws of NY, Book 7B, CPLR C 3211:10, at 21-23).

In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as "documentary evidence," it must be "unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, supra at 996-997 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., supra at 714). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would [*3]qualify as documentary evidence in the proper case" (Fontanetta v John Doe 1, supra at 84-85 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., supra). At the same time, "[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR §3211(a)(1)" (Granada Condominium III Assn. v Palomino, supra at 997 [internal quotation marks omitted];

see Cives Corp. v George A. Fuller Co., Inc., supra at 714; Suchmacher v Manana Grocery, 73 AD3d 1017 [2d Dept. 2010]).

Affidavits submitted by the parties or their attorneys do not constitute documentary evidence within the meaning of CPLR 3211(a)(1), and should not be relied upon by the Supreme Court in directing the dismissal of the complaint pursuant to CPLR 3211(a)(1)

(see Attias v Costiera, 2014 NY App. Div. LEXIS 6117, 2-4 ; 2014 NY Slip Op 06163

[2d Dept. 2014]; Cives Corp. v George A. Fuller Co., Inc., supra at 714; Granada Condominium III Assn. v Palomino, supra at 997; Fontanetta v John Doe 1, supra at 84-85). The documentary evidence submitted in support of the defendants' motion is the contract of sale and the rider to the contract of sale.

The central issue before the Court is whether the defendant has demonstrated entitlement to dismissal since the contract was validly canceled under the terms of the agreement itself. If not, the defendant's wrongful rescission constituted a breach of contract entitling the plaintiff to summary judgment on his claim for specific performance of the contract for the sale of real property.

Where the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations". (AFBT-II, LLC v Country Vill. on Mooney Pond, Inc., 305 AD2d 340 [2d Dept. 2003], quoting Slamow v Del Col, 174 AD2d 725, 726 [2d Dept. 1991], affirmed 79 NY2d 1016 [2d Dept. 1992]; Harris v.Ware, 142 AD2d 666 [2d Dept. 1988]).

The parties to a contract for the sale of real property may agree, as they did here, to restrict the liability resulting from a breach, or may agree that no damages will be payable at all once the status quo has been restored (see Progressive Solar Concepts, Inc. v Gabes, 161 AD2d 752 [2d Dept. 1990]; Mokar Props. Corp. v Hall, 6 AD2d 536, 539

[1st Dept. 1958]). However, an obligation to act in good faith will be implied in connection with such liability-limiting clauses, in the event of an inability to convey good title (see Mokar Props. Corp. v Hall, supra, at 539; 9 Bros. Bldg. Supply Corp. v. Buonamicia, 299 AD2d 529 [2d Dept. 2002]; Stutzmann Realty, Inc. v Petralia,

160 AD2d 994 [2d Dept. 1990]; Calligar v Fradkoff, 154 AD2d 495 [2d Dept. 1989]; Krasne v. Gedell, 147 AD2d 616 [2d Dept. 1989]; Nikolis v Reznick, 156 AD2d 352

[2d Dept. 1989]; see also Cipriano v Glen Cove Lodge No. 1458, B.P.O.E., 297 AD2d 649 [2d Dept. 2002], modified Cipriano v. Glen Cove Lodge #1458, B.P.O.E., 1 NY3d 53 [2003]).

Paragraph 21 of the contract of sale between the parties provides that:

21.In the event the cost to Seller to comply with any of Seller's obligations under this Contract exceeds $500.00, Seller may cancel the Contract or offer Purchaser a $500.00 credit.

It is essentially uncontroverted that there were objections to title, consisting of liens and fines, which amounted to over $65,000.00. The contract of sale obligates the defendant-seller Tung to deliver title to the premises free of all liens and violations. The defendant-seller attempted to do so, but the cost was prohibitive. This was exactly the purpose of the "escape-hatch" provision in paragraph 21. Thus, she validly exercised her right to cancel the contract of sale under that provision and returned the down payment to plaintiff's attorneys on April 23, 2014.

Inasmuch as the contract demonstrates that Tung properly canceled the contract according to its terms and, thus, "conclusively establish[es ] a defense to the asserted claims as a matter of law," Tung is entitled to dismissal of the complaint pursuant to CPLR 3211 (a)(1) (Ofman v Katz, 89 AD3d 909, 910 [2d Dept. 2011] quoting Leon v Martinez, 84 NY2d 83, 88, 638 NE2d 511, 614 NYS2d 972 [1994]; Cochard-Robinson v Concepcion, 60 AD3d 800, 802 [2d Dept. 2009]). Moreover, it is entitled to dismissal of the complaint pursuant to CPLR 3211(a)(7), since the complaint does not plead a valid cause of action alleging breach of contract (see Wild Oaks, LLC v Joseph A. Beehan, Jr. Gen. Contr., Inc., 77 AD3d 924, 926 [2d Dept. 2010]; Vecere v Estate of Arnold Berle, 91 AD3d 637 [2d Dept. 2012]).

Accordingly, it is,

ORDERED, that the motion by defendant Tung to dismiss is granted, and the plaintiff's complaint and any and all counterclaims are dismissed as against her; and it is further,

ORDERED, that the cross-motion by plaintiff is denied in all respects; and it is further,

ORDERED, that a copy of this Order with Notice of Entry be served on all parties to the action; and it is further

ORDERED, that defendant Prignoli shall return the deposit to plaintiff's attorney, within thirty (30) days of the date of service of a copy of this Order with Notice of Entry; and it is further

ORDERED, that any and all other applications not specifically addressed herein are denied.

This constitutes the opinion, decision and order of the Court.

Dated: October 9, 2014

TIMOTHY J. DUFFICY, J.S.C.