Greenapple v. Capital One, N.A.

• Decision Date: 21 February 2012
• Citation: 2012 N.Y. Slip Op. 01329,939 N.Y.S.2d 351,92 A.D.3d 548
• Parties: Rhonda GREENAPPLE, etc., Plaintiffs–Appellant, v. CAPITAL ONE, N.A., etc., et al., Defendants,Goldberg Weprin Finkel Goldstein LLP, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01329
92 A.D.3d 548
939 N.Y.S.2d 351

Rhonda GREENAPPLE, etc., Plaintiffs–Appellant,
v.
CAPITAL ONE, N.A., etc., et al., Defendants,Goldberg Weprin Finkel Goldstein LLP, Defendant–Respondent.

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

Feb. 21, 2012.

[939 N.Y.S.2d 352]

Law Offices of Allan H. Carlin, New York (Allan H. Carlin of counsel), for appellant.

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

MAZZARELLI, J.P., SAXE, CATTERSON, ACOSTA, ROMÁN, JJ.

[92 A.D.3d 548] Order, Supreme Court, New York County (James A. Yates, J.), entered November 29, 2010, which granted the motion of defendant Goldberg Weprin Finkel Goldstein LLP (Goldberg) to dismiss the complaint as against it, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff and defendant Park Madison Associates, LLC (Park) executed a purchase agreement whereby plaintiff agreed to purchase a condominium unit located at 23 East 22nd Street, New York, New York. Park was both the sponsor and the agent for the owners of the condominium. Plaintiff paid a deposit of $104,000, which was held in escrow by Goldberg. Pursuant to the escrow agreement, Goldberg, as the escrow agent, was required to hold the deposit money in an escrow account “until otherwise directed ... in a writing signed by both [s]ponsor and purchaser.” The purchase agreement also exempted Goldberg from liability in the performance of its duties as escrow agent, “except for [its] own gross negligence or willful misconduct.”

Plaintiff sought to rescind the purchase agreement and requested the return of her deposit. Goldberg rejected plaintiff's rescission asserting that the purchase agreement had already been terminated by plaintiff years earlier, at which time Goldberg returned her deposit to Park, which in turn tendered it to plaintiff. In support of its rejection, Goldberg provided plaintiff with a copy of a termination agreement, signed by plaintiff and authorizing the release of plaintiff's deposit to [92 A.D.3d 549] Park. Also annexed to the termination agreement was a general release in Park's favor, to which plaintiff's notarized signature was affixed. Lastly, Goldberg provided a copy of the refund check, made payable to plaintiff and double-endorsed, first by plaintiff, and then by Slazer Enterprises LLC (Slazer), one of the owners of the condominium, for deposit into Slazer's bank account.

Alleging that she never received her deposit, that she never executed the...