M & E 73-75, LLC v. 57 Fusion LLC

• Decision Date: 30 July 2020
• Docket Number: 11156,153655/12
• Citation: 189 A.D.3d 1,128 N.Y.S.3d 200
• Parties: M & E 73-75, LLC, Plaintiff–Appellant, v. 57 FUSION LLC, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1

128 N.Y.S.3d 200

M & E 73-75, LLC, Plaintiff–Appellant,

v.57 FUSION LLC, Defendant-Respondent.

11156

153655/12

Supreme Court, Appellate Division, First Department, New York.

Entered July 30, 2020

Goldberg Weprin Finkel Goldstein LLP, New York (Matthew Hearle of counsel), for appellant.

Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Ethan A. Kobre of counsel), for respondent.

Sallie Manzanet–Daniels, J.P., Barbara R. Kapnick, Ellen Gesmer, Jeffrey K. Oing, JJ.

OING, J.

Plaintiff buyer, M & E 73–75 LLC, entered into a contract with defendant seller, 57 Fusion LLC, to purchase its Manhattan real property located at 57 Stanton Street (a/k/a 217 Eldridge Street) for $2,800,000, with a $100,000 down payment. The parties originally scheduled the closing to take place on January 7, 2012. After several adjournments, the parties set May 14, 2012 for the closing with the condition that time was of the essence. The parties did not consummate their real estate transaction at the closing. This action ensued.

In its complaint, which did not have any supporting documents annexed to it, the buyer alleged that, prior to the May 14 closing, its title company uncovered that the property's tax classification was incorrect, and that this misclassification was the result of the seller's intentional and fraudulent misrepresentation to the City. The complaint also set forth the allegations that the misclassification enabled the seller to artificially inflate the value of the premises because it would significantly and materially reduce its value; that the misclassification violated the seller's contractual representations and obligations; and that it created a defect in title to the premises which a title company is unwilling to insure. The buyer then alleged that "the parties understood and agreed that the Purchase Price under the Contract would be modified to reflect the diminished value of the Premises resulting from the Plaintiff uncovering the tax fraud" and that "[a]t the closing, the Defendant reneged on the agreement." It further alleged that the seller was not ready, willing and able to close because it never tendered title or its other performances required under the contract. The buyer alleged that at the closing it:

"was and remains prepared to perform all of its contractual obligations and stands ready, willing and able to proceed with the consummation of the Contract upon Defendant's satisfaction of its contractual obligations, including addressing the fraudulent misclassification of the Premises and the concomitant diminution of value resulting therefrom."

Steven Croman, the buyer's principal, in an affidavit originally submitted in support of an unrelated motion but utilized here to oppose the seller's dismissal motion, averred that:

"in addition to requesting reformation of the Contract's purchase price to account for the reduction in the Premises' value resulting from Defendant's misrepresentations concerning the Premises' proper tax classification, there were several additional defects and deficiencies in Defendant's closing obligations at the May 14, 2012 closing for which Plaintiff is seeking remediation.

* * *

"When my counsel and I requested that Seller remedy these defects on the closing date at Seller's counsel's office, Seller's principal refused, abruptly left the office, and did not return to consummate the closing. As I previously attested, Plaintiff was ready, willing and [able] to close on the Contract on May 14, 2012 provided Defendant cured all defects. To be sure, I never told Defendant's principal or counsel that Plaintiff was refusing to close."

The buyer asserted four causes of action: reformation based on fraud—unilateral mistake; specific performance with an abatement of the purchase price; breach of contract; and specific performance of the seller's obligations under their contract.

Although not alleged in the complaint, the record contains two letters dated May 11, 2012, three days before closing, from the buyer's attorney to the seller's attorney advising him, among other things, of the tax misclassification and the need for a reduction in the purchase price. The letters further advised that the buyer was ready, willing and able to close provided the seller remedied these issues. Ultimately, the second letter rejected the seller's offer as "grossly inadequate."

On June 5, 2015 the buyer filed its note of issue. After Supreme Court denied the seller's motion to vacate the note of issue, it moved, pursuant to CPLR 3211(a)(7), to dismiss the complaint for failure to state a cause of action. At oral argument, the seller's counsel made clear that it sought dismissal purely on the ground that the complaint's allegations failed to plead facts to support any of the four causes of action. The buyer cross-moved for the imposition of sanctions and attorney's fees, and for an order denying the seller's motion on the ground that it was in actuality an untimely summary judgment motion. Supreme Court granted the motion to dismiss, finding that the complaint failed to plead facts to support the asserted causes of action, and denied the cross motion.

The buyer argues that Supreme Court erred in considering the seller's post note of issue CPLR 3211(a)(7) motion to dismiss because it was a disguised untimely CPLR 3212 summary judgment motion. Alternatively, the buyer argues that, based on the seller's motion papers, Supreme Court impermissibly went beyond the four corners of the complaint by considering documentary evidence. The buyer argues that documentary evidence cannot be considered because the seller did not timely move for CPLR 3211(a)(1) relief, or interpose that defense in its responsive pleading.

The principle is well settled that on a CPLR 3211(a)(7) motion the allegations in the complaint are to be afforded liberal construction, and the facts alleged therein are to be accepted as true, according a plaintiff the benefit of every possible favorable inference and determining only whether the facts alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; Jericho Group, Ltd. v. Midtown Dev., L.P., 32 A.D.3d 294, 298, 820 N.Y.S.2d 241 [1st Dept. 2006] ). A motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action must be denied if the factual allegations contained within the four corners of the pleading manifest any cause of action cognizable at law (see 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 151–152, 746 N.Y.S.2d 131, 773 N.E.2d 496 [2002] ). While factual allegations set forth in a complaint should be accorded every favorable inference, bare legal conclusions and inherently incredible facts are not entitled to preferential consideration (see Matter of Sud v. Sud, 211 A.D.2d 423, 424, 621 N.Y.S.2d 37 [1st Dept. 1995] ). To withstand dismissal, a plaintiff may submit opposing affidavits which can be considered to amplify the pleadings (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635–636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ). Unlike a summary judgment motion pursuant to CPLR 3212, a CPLR 3211(a)(7) motion can be made at any time (see CPLR 3211(e) ; Goldberg v. Torim, 181 A.D.3d 443, 444, 117 N.Y.S.3d 567 [1st Dept. 2020] ).

Where the motion to dismiss is based on documentary evidence under CPLR 3211(a)(1), the claim will be dismissed only "if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). A CPLR 3211(a)(1) motion, however, must be made before an answer is interposed or preserved in a responsive pleading; otherwise it is waived (see CPLR 3211(e) ; see e.g. McMahon v. Cobblestone Lofts Condominium, 161 A.D.3d 536, 537, 78 N.Y.S.3d 2 [1st Dept. 2018] ).

Supreme Court properly considered the seller's post note of issue CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action because it can be made at any time ( CPLR 3211[e] ). Thus, CPLR 3212(a)'s requirement of demonstrating good cause for the delay does not apply (see Mihlovan v. Grozavu, 72 N.Y.2d 506, 508, 534 N.Y.S.2d 656, 531 N.E.2d 288 [1988] ). We note that the complaint herein did not have annexed to it any supporting documents. The buyer correctly argues that, other than the complaint, the documentary evidence submitted by the seller on its motion cannot be considered because of the motion's post-answer posture and the seller's failure to preserve the CPLR 3211(a)(1) defense in its answer. A review of the proceeding's transcript demonstrates that Supreme Court limited its analysis to the four corners of the complaint, and did not rely on any documentary evidence in deciding the motion.

The buyer has abandoned its appeal from the dismissal of the claims for reformation (first cause of action) and specific performance with a price abatement (second cause of action) by failing to make any arguments as to those claims in its appellate brief (see Mendoza v. Akerman Senterfitt LLP, 128 A.D.3d 480, 483, 10 N.Y.S.3d 18 [1st Dept. 2015] ). We turn to the remaining cause of action for breach of contract and specific performance. We note that the buyer limits the arguments for the contract claim to seeking specific performance, which is an equitable remedy, rather than a separate cause of action (see Cho v. 401–403 57th St. Realty Corp., 300 A.D.2d 174, 175, 752 N.Y.S.2d 55 [1st Dept. 2002] ).

A party seeking specific performance must allege that it "substantially performed its contractual obligations and was willing and able to perform its remaining obligations, that defendant was able to convey the property, and that there was no adequate remedy at law" ( EMF Gen. Contr. Corp. v. Bisbee, 6 A.D.3d 45,...