Ambroise v. Palmana Realty Corp.

• Citation: 153 N.Y.S.3d 572,197 A.D.3d 1226
• Decision Date: 22 September 2021
• Docket Number: Index No. 518775/18,2019–08795, 2019–11147
• Parties: Paul AMBROISE, appellant, v. PALMANA REALTY CORP., respondent.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 1226

153 N.Y.S.3d 572

Paul AMBROISE, appellant,

v.PALMANA REALTY CORP., respondent.

2019–08795, 2019–11147

Index No. 518775/18

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

Argued—May 18, 2021

September 22, 2021

Anderson, Bowman & Zalewski, PLLC, Kew Gardens, N.Y. (Matthew J. Routh of counsel), for appellant.

Friedland Law LLC (Norman A. Olch, New York, NY, of counsel), for respondent.

SYLVIA O. HINDS–RADIX, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated July 19, 2019, and (2) an order of the same court dated August 29, 2019. The order dated July 19, 2019, insofar as appealed from, sua sponte, directed the dismissal of the complaint pursuant to CPLR 3126. The order dated August 29, 2019, denied the plaintiff's motion, inter alia, to enjoin the Supreme Court from signing the order dated July 19, 2019.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order dated July 19, 2019, as, sua sponte, directed the dismissal of the complaint pursuant to CPLR 3126 is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order dated July 19, 2019, is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith; and it is further,

ORDERED that the appeal from the order dated August 29, 2019, is dismissed as academic in light of our determination on the appeal from the order dated July 19, 2019; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On April 19, 2018, the plaintiff entered into a contract to purchase an abandoned gas station from the defendant for the sum of $1,330,000. In a letter dated May 29, 2018, the defendant notified the plaintiff that the closing was scheduled for July 31, 2018. In an email dated July 27, 2018, the plaintiff's attorney advised the defendant's attorney that the plaintiff did not consider the property ready for closing because it was not "vacant and broom clean." In a responsive email, the defendant's attorney insisted the property was ready for closing, and that the closing would proceed on July 31, 2018. In a letter dated July 30, 2018, the plaintiff's attorney advised the defendant's attorney that the plaintiff was not willing to close until certain issues were resolved, including the removal of equipment from the property. The plaintiff did not appear for the closing on July 31, 2018.

The plaintiff commenced this action, inter alia, for specific performance of the contract of sale. In April 2019, the defendant served a demand for a verified bill of particulars and notice for discovery and inspection. On or about June 11, 2019, the defendant moved, among other things, to compel the plaintiff to respond to its demand for a verified bill of particulars and notice for discovery and inspection. The plaintiff did not file opposition papers to the motion. On July 3, 2019, the parties appeared for oral argument of the motion, and the plaintiff's attorney requested an adjournment. During that proceeding, the Supreme Court denied the plaintiff's application for an adjournment and directed the defendant's attorney to settle an order, inter alia, striking the complaint as a penalty for the plaintiff's failure to adequately comply with the defendant's discovery demands. During a subsequent proceeding on July 19, 2019, the plaintiff's attorney indicated that in response to certain discovery demands, "my client has searched his records and produced all the responsive documents in his custody and control," including term sheets, proof of funds, and letters from lenders stating that the plaintiff had the funds available to close on the property. Nevertheless, the court deemed the plaintiff's submissions "inadequate," and ruled that it would sign the contemplated order.

In an order dated July 19, 2019, the Supreme Court, among other things, sua sponte, directed dismissal of the complaint pursuant to CPLR 3126. The plaintiff moved, inter alia, to enjoin the Supreme Court...