858 N.Y.S.2d 372 | N.Y. App. Div. | 2008
Ordered that the order is modified, on the law, (a) by deleting the provisions thereof granting those branches of the motion of the defendants North Town Phase II Houses, Inc., North Town Phase II Associates, L.P, and Island House, Inc., in which the defendants North Town Phase III Houses, Inc., North Town Phase III Associates, L.P, and Westview Houses, Inc., joined, which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first and third causes of action and substituting therefor provisions denying those branches of the motion, (b) by deleting the provisions thereof granting those branches of the motion of the defendants North Town Phase III Houses, Inc., North Town Phase III Associates, L.P, and Westview Houses, Inc., in which the defendants North Town Phase II Houses, Inc., North Town Phase II Associates, L.P, and Island House, Inc., joined, which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the second, fourth, and seventh causes of action and substituting therefor provisions denying those branches of the motion, and (c) by deleting the provisions thereof granting those branches of
The complaint alleges that the plaintiffs and each of two sets of defendants entered into two respective contracts, pursuant to which those defendants agreed to sell to the plaintiffs, and the plaintiffs agreed to purchase from those defendants, certain real properties located on Roosevelt Island for a total sum of $93,500,000. The two contracts provided for closing dates of March 31, 2004, and May 30, 2004, respectively, but allowed for several extensions at the purchasers’ request and upon the purchasers’ payment of additional sums toward the purchase price.
After several such extensions, the parties agreed, in letter agreements dated October 11, 2005, that by paying an additional sum of $500,000 per contract on or before October 31, 2005 the plaintiffs could cure their default under the prior contracts and extend the closing dates referable to both contracts until November 30, 2005. The letter agreements further provided that if the closings did not take place on that date, “then the Sellers shall have the right to immediately terminate the Agreements, as modified hereby, without prior Notice of Default and Default Cure Period . . . and retain all funds theretofore received from the Purchasers pursuant to the Agreements, as modified hereby, as liquidated damages and as the Sellers’ sole remedy.”
The plaintiffs allegedly made the payments necessary to extend the closing date to November 30, 2005 bringing the total sum they had paid toward the purchase price to $8,000,000 and increasing the purchase price to the sum of $97,500,000. The closings, however, did not take place as scheduled. Instead, on December 5, 2005 the parties entered into further agreements, which they dated “as of’ November 30, 2005, pursuant to which the contracts would be extended until December 16, 2005, upon the purchasers’ payment of an additional $1,000,000 on or before 3:00 p.m. on December 5, 2005. The purchasers never paid that sum and the two sets of defendants purportedly terminated the respective contracts on the following day. The plaintiffs nevertheless sought to close the transaction by tendering the balance of the purchase price on February 1, 2006, but both sets of defendants refused to close.
In order to prevail on that branch of their motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (1), the Island/Westview defendants were required to demonstrate that “the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Insofar as their motion and the separate motion of the Kimmelman defendants are predicated upon CPLR 3211 (a) (7), the court is required to “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). “Whether the plaintiff can ultimately establish the allegations ‘is not part of the calculus’ ” (Aberbach v Biomedical Tissue Servs., Ltd., 48 AD3d 716, 717-718 [2008], quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).
The complaint states a valid cause of action for breach of contract by alleging the parties’ agreements and the respondents’ failure to perform when the plaintiffs tendered the
Initially, the plaintiffs’ argument that the further agreements reached on December 5, 2005 are invalid by virtue of the violation of the prohibition against communication by one lawyer with the client of another(see Code of Professional Responsibility DR 7-104 [a] [1] [22 NYCRR 1200.35 (a) (1)3) is without merit. That proscription applies to a lawyer only “[d]uring the course of the representation of a client” (id.). Here, the person who made the allegedly offending communication, although a lawyer, was identified throughout the documents as the president of two of the contracting entities, not as their attorney. The documentary evidence established, therefore, that this disciplinary rule is not implicated.
Nevertheless, the December 5, 2005 agreements do not constitute documentary evidence sufficient to dismiss the complaint insofar as asserted against the Island/Westview defendants. The relevant language of each of those agreements provides that “the Purchaser shall extend the Closing Date ... by paying to the Partnership $500,000 by wire transfer ... no later than 3:00 p.m. on December 5, 2005 and by 5:00 p.m. on the same date providing evidence satisfactory to the Sellers in their reasonable business judgment that by December 16, 2005 Purchasers will have sufficient capital available from one or more lenders to be able to fulfil [sic] its financial obligations under the Agreements at Closing.” There is no dispute that the plaintiffs neither paid the additional sum nor produced the required evidence. Even if the plaintiffs had paid, however, the agreements dated December 5, 2005 were not unequivocally effective to extend the closing date.
In the first instance, the agreements dated December 5, 2005 provide that the “purchaser” could extend the closing date by performing certain acts, not that the parties had agreed to extend the closing date. As a result, the requirement of payment by the “purchaser” is susceptible of being read as a condition precedent to the effectiveness of the December 5, 2005 agreements, as the respondents’ transactional counsel in fact understood it at the time, rather than, as the respondents would have it now, an obligation that was breached by the plaintiffs’ failure to pay. If the former, the agreements reached on December 5, 2005 never became effective and, consequently, cannot have been breached by the plaintiffs’ failure to close on
The respondents also failed to establish, at least at this stage of the litigation, that the plaintiffs defaulted by failing to close on November 30, 2005. Contrary to the argument of the Island/ Westview defendants, the documentary evidence does not establish that the contracts in issue are option contracts requiring strict compliance and for which time is inherently of the essence (see Richmond v Miele, 30 AD3d 575 [2006]; LaPonte v Dunn, 17 AD3d 539 [2005]; Mohring Enters. v HSBC Bank USA, 291 AD2d 385 [2002]). Whether an agreement is an option contract or a bilateral contract is determined by reference to its various terms (see T.I.P. Holding No. 2 Corp. v Wicks, 63 AD2d 263, 269-271 [1978]). Unlike the situation presented in Ittleson v Barnett (304 AD2d 526 [2003]), the language of the contracts between the parties here does not resolve that issue. As a result, the documentary evidence is not sufficient to establish that the contracts are option contracts.
Without concluding that the contracts are option contracts, the documentary evidence does not establish that the plaintiff defaulted by failing to close on November 30, 2005 (cf. Fucarino v Tide Way Homes, 306 AD2d 375 [2003]). Even if time had been properly made of the essence by the October 11, 2005 agreement, as the Island/Westview defendants argue, the documentary evidence does not establish the respondents’ readiness and ability to close on November 30, 2005, as it must in order for them to prevail on their contention that the plaintiffs were in default at that time (see Lawrence v Miller, 86 NY 131 [1881]; Nowak v Rametta, 43 AD3d 1120, 1122 [2007]; Gargano v Rubin, 200 AD2d 554 [1994]). The plaintiffs’ request for an adjournment of the closing was not, at least on this record, the unequivocal repudiation of the contracts necessary to constitute anticipatory repudiation (see Norcon Power Partners v Niagara Mohawk Power Corp., 92 NY2d 458, 463 [1998]; Tenavision, Inc. v Neuman, 45 NY2d 145, 150 [1978]; Engelhardt v McGinnis, 2 AD3d 572, 573 [2003]; Rachmani Corp. v 9 E. 96th St. Apt. Corp., 211 AD2d 262, 266 [1995]) that would absolve the respondents of the obligation to tender (see Cooper v Bosse, 85 AD2d 616, 618 [1981]; Spero v Kobler, 245 App Div 643, 645 [1935]).
The plaintiffs’ remaining causes of action, however, were properly dismissed. The causes of action alleging tortious
The plaintiffs’ remaining contentions are without merit. Spolzino, J.E, Miller, Dillon and McCarthy, JJ., concur.