D.B.D. Nominee, Inc. v. 814 10th Ave. Corp.

• Decision Date: 21 March 1985
• Parties: D.B.D. NOMINEE, INC., Plaintiff-Appellant, v. 814 10TH AVENUE CORP., Defendant-Respondent, 818 Tenth Avenue Corp., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 251

486 N.Y.S.2d 251

109 A.D.2d 668

D.B.D. NOMINEE, INC., Plaintiff-Appellant, v. 814 10TH AVENUE CORP., Defendant-Respondent, 818 Tenth Avenue Corp., et al., Defendants.

Supreme Court, Appellate Division,

First Department.

March 21, 1985.

D. Galinson, for plaintiff-appellant.

T.O. Prounis, New York City, for defendant-respondent.

Before MURPHY, P.J., and KUPFERMAN, ROSS and FEIN, JJ.

MEMORANDUM DECISION.

Appeal from an order, entered September 20, 1984, Supreme Court, New York County, is unanimously dismissed, without costs, as subsumed in the appeal from the judgment entered thereon, October 2, 1984, which, inter alia, granted the motion of defendants 814 10th Avenue Corp. and 818 Tenth Avenue Corp. to dismiss the complaint; the latter is unanimously modified, on the law and the facts, to the extent of denying defendants' motion, and reinstating the complaint, and the judgment is otherwise affirmed, with costs to the appellant.

Defendant 814 10th Avenue Corp. (814 Corp.) is the owner of a seven-story old law tenement, located at 814-816 10th Avenue, Manhattan (the premises). Due to the many violations on these tenant-filled premises, in 1980 the Department of Housing Preservation and Development of the City of New York commenced a proceeding against defendant under Article 7-A of the Real Property Actions and Proceedings Law. This proceeding resulted in the entry of a judgment, consented to by defendant 814 Corp., pursuant to which an Administratrix, Nancy Kyriakou, was appointed to operate that multiple dwelling. Thereafter, an alleged stipulation was entered into between defendant 814 Corp. and this Administratrix, which provided in pertinent part, that the tenants occupying the premises would be relocated in an adjoining building, known as 818 10th Avenue (818), that defendant 814 Corp. also owned. According to the terms of this stipulation, defendant 814 Corp. was to make certain repairs in 818 to make it habitable, and upon completion of the stipulated repairs, the Article 7-A proceeding would be discontinued and the lis pendens cancelled.

Subsequently, on October 27, 1982, plaintiff D.B.D. Nominee, Inc. entered into a contract with defendant 814 Corp. to buy the premises 814 for $707,500.00. When the contract was signed, plaintiff gave defendant 814 Corp. a $50,000.00 deposit. Under this agreement, defendant 814 Corp., at the closing of title, was required, inter alia: (1) to have had the Article 7-A proceeding discontinued and lis pendens cancelled; and, (2) to deliver the premises vacant. Although the contract contains a closing date of March 16, 1983, time was not made of the essence, and the parties agreed to a number of extensions of the closing date.

On February 10, 1984 the plaintiff received a letter from defendant 814 Corp. in which defendant 814 Corp. wrote, in pertinent part, that it could not "deliver clean title", because it had allegedly been unable to discontinue the Article 7-A proceeding.

Plaintiff commenced the instant action for, inter alia, specific performance of the agreement. In its complaint, plaintiff allege inter alia, that defendant 814 Corp. had transferred title to premises 818 to defendant 818 Tenth Avenue Corp. (818 Corp.), for the purpose of avoiding defendant 814 Corp.'s obligations under the stipulation, mentioned supra, with...