Liberty Equity Restoration Corp. v. Maeng-Soon YunLiberty Equity Restoration Corp. v. Maeng-Soon Yun
Published by
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 4, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY
LINDA CHRISTOPHER, JJ.
2016-00537 (Index No. 70040/12)
Liberty Equity Restoration Corporation, plaintiff- respondent, v Maeng-Soоn Yun, et al., appellants; Marissa LoPriore, as administrator of the estate of Frank LoPriore, et al., third-party defendants- respondents.
Tilem & Associates, P.C., White Plains, NY (Peter H. Tilem of counsel), for appellants.
John A. Tartaglia III, Port Chester, NY, for plaintiff-respondent and third-party defendants-respondents.
DECISION & ORDER
In an action, inter alia, for specific performance of a contract for the sale of real property, the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Orazio R. Bellantoni, J.), dated December 23, 2015, as granted that branch of the plaintiff‘s motion which was for summary judgment on the complaint and, in effect, denied those branches of their cross motion which were for summary judgment on their third-party cause of action to recover the value of the use and occupancy of the subject premises for a period beginning August 1, 2012, and for summary judgment on the issue of damages owed to them by the plaintiff and the third-party defendants.
In 2006, the defendants third-party plaintiffs, Maeng-Soon Yun and Kil-Chung Yun (hereinafter together the Yuns), who are husband and wife, purchased, using financing, a residential property located in Bedford. On August 1, 2011, Kil-Chung Yun entered into a lease agreement with the plaintiff, Liberty Equity Restoration Corporation (hereinafter Liberty Equity), granting Liberty Equity the right, as tenant, to occupy the subject premises for a one-year term ending on July 31, 2012.
On November 29, 2012, Liberty Equity commenced this action in the Supreme Court, Westchester County, against the Yuns for specific performance of the contract of sale or, in the alternative, to recover damages for breach of the contract of sale. The Yuns answered and asserted counterclaims, inter alia, to recover the value of Liberty Equity‘s use and occupancy of the premises from the expiration of the lease until the conclusion of the matter. In addition, the Yuns commenced a third-party action against Frank LoPriore and Mary Ann LoPriore, inter alia, to recover the value of their use and occupancy of the premises. The Yuns also commenced a holdover proceeding against Liberty Equity in the North Castle Justice Court. The proceeding was removed from the North Castle Justice Court and consolidated with the action pending in the Supreme Court.
The Yuns moved against Liberty Equity, Frank LoPriore, and Mary Ann LoPriore for summary judgment аwarding them possession of the subject premises and for summary judgment awarding them the value of the use and occupancy of the premises as of August 1, 2012. In an order dated August 28, 2013, the Supreme Court denied the Yuns’ motion. On appeal, in a decision and order dated June 10, 2015, this Court modified the order dated August 28, 2013, concluding that the Yuns were entitled to summary judgment awarding them possession of the premises and the value of the use and occupancy of the premises as of August 1, 2012, as against Liberty Equity (see Liberty Equity Restoration Corp. v Maeng-Soon Yun, 129 AD3d 785, 786). However, concluding that issues of fact existed “as to the value of the use and occupancy of the subject premises,” this Court remitted the matter “to the Supreme Cоurt, Westchester County, to determine the amount of damages owed to [the Yuns] by [Liberty Equity]” (id. at 786-787). Upon remittitur, the Supreme Court did not conduct proceedings
By notice of motion dated September 3, 2015, Liberty Equity moved, inter alia, for summary judgment on its complaint seeking specific performance of the contract of sale or, in the alternative, damages for breach of сontract. The Yuns opposed the motion and cross-moved, inter alia, for summary judgment on their third-party cause of action against Frank LoPriore and Mary Ann LoPriore to recover the value of their use and оccupancy of the premises. The Yuns also cross-moved for summary judgment on the issue of damages against Liberty Equity, Frank LoPriore, and Mary Ann LoPriore, contending that they were entitled to damages in the amount of $7,200 pеr month. In an order dated December 23, 2015, the Supreme Court, inter alia, granted summary judgment to Liberty Equity on its causes of action for specific performance and alleging breach of contract. The court аlso, in effect, denied the Yuns’ cross motion. The Yuns appeal. Frank LoPriore died while this appeal was pending, and Marissa LoPriore, as administrator of his estate, was substituted in his place.
Liberty Equity failed to establish its prima facie entitlement to judgment as a matter of law on its causes of action for specific performance and alleging breach of contract. The essential elements of a breach of contract cause of action are “the existence of a contract, the plaintiff‘s performance under the contract, the defendant‘s breach of that contract, and resulting damages” (JP Morgan Chase v J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803; see Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127). “To prevail on a cause of action for specific performance of a contract for the sale of real property, a . . . purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law” (1107 Putnam, LLC v Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., 152 AD3d 474, 475; see ADC Orange, Inc. v Coyote Acres, Inc., 7 NY3d 484, 490; see Cipriano v Glen Cove Lodge #1458, B.P.O.E., 1 NY3d 53, 62).
Here, the evidence submitted by Liberty Equity in support of its motion established that Liberty Equity failed to perform its obligations under the parties’ agrеements. During his deposition, Frank LoPriore acknowledged that there were oral agreements between the parties that governed the contract of sale, the lease, and the power of attorney, and that either he, an
Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see
The Yuns established their prima facie entitlement to judgment as a mattеr of law on their third-party cause of action against Frank LoPriore and Mary Ann LoPriore to recover the value of their use and occupancy of the premises, as the record demonstrates that Frank LoPriore and Mary Ann LoPriore resided at the premises for a period of time after the lease expired (see
Since issues of fact remain as to the value of the use and occupancy of the premises during the relevant time period, i.e.,
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court