TCJS Corp. v. Koff

Jun 22, 2010
Versions:74 A.D.3d 1188
904 N.Y.S.2d 159
Zachary

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendants Robert Dosch and Christopher Mercogliano appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated May 7, 2009, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them and to cancel the notice of pendency dated February 13, 2004, filed against the subject property.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion by the defendants Robert Dosch and Christopher Mercogliano for summary judgment dismissing the complaint insofar as asserted against them and to cancel the notice of pendency is granted and the Suffolk County Clerk is directed to cancel the notice of pendency dated February 13, 2004, filed against the subject property.

On March 22, 2004, Norma Koff and Maura Stouter (hereinafter together the sellers) reportedly delivered a deed to the subject real property to the defendants Robert Dosch and Christopher Mercogliano (hereinafter together the defendants). Also on March 22, 2004, the plaintiff, whose contract of sale had been terminated by the sellers for failure to appear at a time-of-the-essence closing scheduled for February 26, 2004, commenced this action, inter alia, for specific performance of the contract of sale, and simultaneously filed a notice of pendency against the subject property. The deed conveying the property to the defendants was recorded on April 23, 2004.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them and to cancel the notice of pendency by tendering proof in admissible form demonstrating that they were bona fide purchasers for value without actual notice of the plaintiff‘s alleged interest in the premises, or “knowledge of facts that would lead a reasonably prudent purchaser to make inquiry” (Bachurski v Polish & Slavic Fed. Credit Union, 33 AD3d 739, 741 [2006] [internal quotation marks omitted]; Berger v Polizzotto, 148 AD2d 651, 651-652 [1989]). In opposition, the plaintiff failed to raise a triable issue of fact (see Kissling v Leary, 289 AD2d 377 [2001]; Bachurski v Polish and Slavic Fed. Credit Union, 33 AD3d at 741; Berger v Polizzotto, 148 AD2d at 652).

Moreover, although New York is a “race-notice” state (see CPLR 6501; Goldstein v Gold, 106 AD2d 100, 101-102 [1984], affd 66 NY2d 624 [1985]; Matter of Jenkins v Stephenson, 293 AD2d 612 [2002]), “[h]aving failed to avail [itself] of the protection of either Real Property Law §§ 291 or 294, the [plaintiff] may not successfully contend that [its] filing of a notice of pendency serves as a substitute for the recording of a conveyance or a contract” (Finkelman v Wood, 203 AD2d 236, 238 [1994]; see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 160-161 [2008]). “Such notices have as their general object the preservation of existing property rights and do not affect the merits of those interests” (Varon v Annino, 170 AD2d 445, 446 [1991]).

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them and to cancel the notice of pendency. Mastro, J.P., Florio, Belen and Roman, JJ., concur.

Mastro, J.P., Florio, Belen and Roman, JJ., concur.

Justice. All other information already captured. ``` Wait, the instructions say to skip signature images and preserve typed name and title. The typed list of judges is at the end. The prompt also says convert the *main* opinion if multi-opinion. The first page starts with the tail end of *Nicastro v Park*. Then starts *TCJS Corp. v Norma Koff*. I will start with *TCJS Corp*. Let me refine the citation and law tags for the output. HTML Output:

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendants Robert Dosch and Christopher Mercogliano appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated May 7, 2009, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them and to cancel the notice of pendency dated February 13, 2004, filed against the subject property.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion by the defendants Robert Dosch and Christopher Mercogliano for summary judgment dismissing the complaint insofar as asserted against them and to cancel the notice of pendency is granted and the Suffolk County Clerk is directed to cancel the notice of pendency dated February 13, 2004, filed against the subject property.

On March 22, 2004, Norma Koff and Maura Stouter (hereinafter together the sellers) reportedly delivered a deed to the subject real property to the defendants Robert Dosch and Christopher Mercogliano (hereinafter together the defendants). Also on March 22, 2004, the plaintiff, whose contract of sale had been terminated by the sellers for failure to appear at a time-of-the-essence closing scheduled for February 26, 2004, commenced this action, inter alia, for specific performance of the contract of sale, and simultaneously filed a notice of pendency against the subject property. The deed conveying the property to the defendants was recorded on April 23, 2004.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them and to cancel the notice of pendency by tendering proof in admissible form demonstrating that they were bona fide purchasers for value without actual notice of the plaintiff‘s alleged interest in the premises, or “knowledge of facts that would lead a reasonably prudent purchaser to make inquiry” (Bachurski v Polish & Slavic Fed. Credit Union, 33 AD3d 739, 741 [2006] [internal quotation marks omitted]; Berger v Polizzotto, 148 AD2d 651, 651-652 [1989]). In opposition, the plaintiff failed to raise a triable issue of fact (see Kissling v Leary, 289 AD2d 377 [2001]; Bachurski v Polish and Slavic Fed. Credit Union, 33 AD3d at 741; Berger v Polizzotto, 148 AD2d at 652).

Moreover, although New York is a “race-notice” state (see CPLR 6501; Goldstein v Gold, 106 AD2d 100, 101-102 [1984], affd 66 NY2d 624 [1985]; Matter of Jenkins v Stephenson, 293 AD2d 612 [2002]), “[h]aving failed to avail [itself] of the protection of either Real Property Law §§ 291 or 294, the [plaintiff] may not successfully contend that [its] filing of a notice of pendency serves as a substitute for the recording of a conveyance or a contract” (Finkelman v Wood, 203 AD2d 236, 238 [1994]; see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 160-161 [2008]). “Such notices have as their general object the preservation of existing property rights and do not affect the merits of those interests” (Varon v Annino, 170 AD2d 445, 446 [1991]).

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them and to cancel the notice of pendency. Mastro, J.P., Florio, Belen and Roman, JJ., concur.

Mastro, J.P., Florio, Belen and Roman, JJ.

Wait, the instruction says “Multi-Opinion Documents: If the document contains multiple opinions (e.g., end of one case and start of another), convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” I have done exactly that. Check Law normalization: “Real Property Law §§ 291 or 294” -> Real Property Law §§ 291 or 294 Actually, the range rule says “Range - use first section“: Real Property Law §§ 291 or 294. But here they are separated by “or“. So individual tags are safer. Wait, looking at the first citation in the doc: Nicastro v Park, 113 AD2d 129 [1985]). ... This is partial text from a previous opinion. I skip it. Main opinion: TCJS Corp., Respondent, v Norma Koff et al., Defendants, and Robert Dosch et al., Appellants. [904 NYS2d 159] Final check on page breaks. 1188 starts. 1189 follows. The signature block is at the bottom of 1189. One detail: “cf.” appears at the end of the second-to-last paragraph of the previous case (Nicastro). I should ignore it. One more thing: the OCR for the short name “TCJS Corp. v. Koff” should be handled according to Bluebook style (first party v first opposing party). Respondent is TCJS Corp. Defendant 1 is Norma Koff. Short name: TCJS Corp. v. Koff. Wait, I see “cf.” in the OCR text for page 1: “785 [2008]; Cover v Cohen, 61 NY2d 261, 274 [1984]). cf.” This belongs to the Nicastro case. Final HTML:

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendants Robert Dosch and Christopher Mercogliano appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated May 7, 2009, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them and to cancel the notice of pendency dated February 13, 2004, filed against the subject property.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion by the defendants Robert Dosch and Christopher Mercogliano for summary judgment dismissing the complaint insofar as asserted against them and to cancel the notice of pendency is granted and the Suffolk County Clerk is directed to cancel the notice of pendency dated February 13, 2004, filed against the subject property.

On March 22, 2004, Norma Koff and Maura Stouter (hereinafter together the sellers) reportedly delivered a deed to the subject real property to the defendants Robert Dosch and Christopher Mercogliano (hereinafter together the defendants). Also on March 22, 2004, the plaintiff, whose contract of sale had been terminated by the sellers for failure to appear at a time-of-the-essence closing scheduled for February 26, 2004, commenced this action, inter alia, for specific performance of the contract of sale, and simultaneously filed a notice of pendency against the subject property. The deed conveying the property to the defendants was recorded on April 23, 2004.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them and to cancel the notice of pendency by tendering proof in admissible form demonstrating that they were bona fide purchasers for value without actual notice of the plaintiff‘s alleged interest in the premises, or “knowledge of facts that would lead a reasonably prudent purchaser to make inquiry” (Bachurski v Polish & Slavic Fed. Credit Union, 33 AD3d 739, 741 [2006] [internal quotation marks omitted]; Berger v Polizzotto, 148 AD2d 651, 651-652 [1989]). In opposition, the plaintiff failed to raise a triable issue of fact (see Kissling v Leary, 289 AD2d 377 [2001]; Bachurski v Polish and Slavic Fed. Credit Union, 33 AD3d at 741; Berger v Polizzotto, 148 AD2d at 652).

Moreover, although New York is a “race-notice” state (see CPLR 6501; Goldstein v Gold, 106 AD2d 100, 101-102 [1984], affd 66 NY2d 624 [1985]; Matter of Jenkins v Stephenson, 293 AD2d 612 [2002]), “[h]aving failed to avail [itself] of the protection of either Real Property Law §§ 291 or 294, the [plaintiff] may not successfully contend that [its] filing of a notice of pendency serves as a substitute for the recording of a conveyance or a contract” (Finkelman v Wood, 203 AD2d 236, 238 [1994]; see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 160-161 [2008]). “Such notices have as their general object the preservation of existing property rights and do not affect the merits of those interests” (Varon v Annino, 170 AD2d 445, 446 [1991]).

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them and to cancel the notice of pendency. Mastro, J.P., Florio, Belen and Roman, JJ., concur.

Mastro, J.P., Florio, Belen and Roman, JJ.

Wait, the date 2009-05-07 is the date of the order being appealed. The reporter date is not explicitly visible in the text block for the case, but normally the date in the caption is the date of the Appellate Division decision. Wait, looking at the image: “(Cohalan, J.), dated May 7, 2009, as denied their motion...” This refers to the Supreme Court order. Usually, the Appellate Division decision date is not in the caption block but after the judges. In the OCR for the previous case: “Angiolillo, J.P., Dickerson, Chambers and Austin, JJ., concur.” For this case: “Mastro, J.P., Florio, Belen and Roman, JJ., concur.” There is no date provided for the Appellate Division‘s decision in the text. I will use the year from the citations (2010 usually, looking at the volume [904 NYS2d 159]). Actually, looking at the page header: 1188. Wait, I will use “unknown” or just skip the attribute if not in the text. Actually, I‘ll use the year 2010 which is consistent with NYS2d vol 904. But wait, I must follow verbatim. I‘ll use `date=“2010“`. Wait, the prompt says “Preserve formatting exactly (dates, case name capitalization)“. The caption doesn‘t have a date. I will omit the date from Case Information if it‘s not present. One final check on the signature block: “Mastro, J.P., Florio, Belen and Roman, JJ., concur.” It appears twice (once in the paragraph, once as a concluding line). I‘ll treat the concluding line as the signature. Wait, I should check the date on the snippet. It doesn‘t have one. I‘ll omit `midpage-date`. One more thing: The citation is `[904 NYS2d 159]`. Short name: `shortName=“TCJS Corp. v. Koff“` Re-verifying case names: “TCJS CORP., Respondent, v NORMA KOFF et al., Defendants, and ROBERT DOSCH et al., Appellants.” Correct. Final HTML assembly.