Grocery Leasing Corp. v. P&C Merrick Realty Co.

• Decision Date: 22 December 2017
• Docket Number: Index 707253/2017
• Citation: 2017 NY Slip Op 33336 (U)
• Parties: GROCERY LEASING CORP., Plaintiff(s) v. P&C MERRICK REALTY CO., LLC. 104-16, LLC and GOLDEN PROGRESS, INC. Defendant(s)
• Court: New York Supreme Court

2017 NY Slip Op 33336(U)

GROCERY LEASING CORP., Plaintiff(s) v. P&C MERRICK REALTY CO., LLC. 104-16, LLC and GOLDEN PROGRESS, INC.Defendant(s)

Index No. 707253/2017

Supreme Court, Queens County

December 22, 2017

Unpublished Opinion

Present: HONORABLE MARGUERITE A. GRAYS Justice

Marguerite A. Grays Judge

The following papers numbered 1 -9 read on this motion by defendantP&C Merrick Realty Co., LLC(P&C Merrick) pursuant to CPLR §3212andGeneral Obligations Law § 5-7Dfw dismiss the complaint insofar as asserted against it, to cancel the notice of pendency, and for an award of attorneys' fees.

Notice of Motion - Affidavits - Exhibits..................................... 1-4

Answering Affidavits - Exhibits................................................. 5-8

ReplyAffidavits 9

Upon the foregoing papers it is ordered that the motion is determined as follows:

Anber Meat & Produce, Inc.(Anber), as tenant, entered into a lease agreement dated September 3, 2003, with defendantP&C Merrick, as owner/lessor, for the premises known as 108-30 Merrick Boulevard a/k/a 108-00 169^th Place Jamaica, New York Pursuant to Article 53^[1] of the lease agreement, Anber was granted a right of first refusal to purchase the demised premises in the event that defendantP&C Merrick offered it for sale.

Plaintiff commenced this action against defendantP&C Merrick for breach of the lease agreement and specific performance of the right of first refusal, and against defendantsGolden Progress, Inc.(Golden Progress) and 104-16, LLC for tortious interference with the lease.Plaintiff also seeks monetary, declaratory and injunctive relief.Plaintiff alleges that it is the assignee of Anber's rights as the tenant under the lease agreement pursuant to instruments dated October 13, 2014, and March 24, 2015.Plaintiff also alleges that defendantP&C Merrick advised it, by written notice dated November 21, 2016, of the terms of a prospective sale of the demised premises to defendantGolden Progress, Inc.(Golden Progress), including the purchase price of $1.9 million, to be paid by a "10% down" payment and the balance to be paid "after thirty days after due diligence," in" 'all cash'," with "no mortgage contingency [clause]."Plaintiff further alleges that defendantP&C Merrick extended it an opportunity to exercise its right of first refusal to purchase the property within 15 days of the notice.In response, plaintiff allegedly requested a copy of the contract of sale.On December 5, 2016, defendantP&C Merrick allegedly provided plaintiff with a copy of an executed contract of sale dated December 2, 2016, naming it as seller, and defendant 104-16, LLC, rather than defendant Golden Progress, as purchaser.The contract provides for a purchase price of S1.9 million, and sets the closing date as "on or about January 31, 2017."Plaintiff alleges that on or about March 21, 2017, it learned that defendantP&C Merrick had agreed to provide defendant 104-16, LLC with a "closing adjustment," whereby the stated purchase price of $1, 900, 000.00 would be reduced to $1, 850, 000.00.Plaintiff also alleges that defendantP&C Merrick has failed to extend it an opportunity to exercise its right of first refusal to purchase the property for the purchase price of $ 1, 850, 000.00, and therefore is in breach of the lease.Plaintiff claims that defendants 104-16, LLC and Golden Progress have intentionally interfered with its rights under the lease, and procured defendantP&C Merrick's breach of the Article 53 of the lease.

DefendantP&C Merrick moves to dismiss the complaint insofar as asserted against it.In support of its motion, defendantP&C Merrick offers its counsel's affirmation, a copy of the complaint, an answer by defendants 104-16, LLC and Golden Progress, the contract of sale between P&C Merrick and 104-16, LLC, the November 21, 2016 notice, various emails, the lease agreement, the collateral assignment of lease and conditional assumption agreement, a mortgage dated April 19, 2016, given by defendantP&C Merrick and 88-20 88th Street, LLC to Merrick Funding Assocs., a UCC financing statement, an unexecuted lessee's estoppel certificate, and an affidavit of Pedro Pichardo, its managing member, and the affirmation of Gene T. Anton, Esq., the counsel representing defendantP&C Merrick in relation to the sale of the property.

Defendants 104-16, LLC and Golden Progress appear in support of the motion, asserting that the action should be dismissed.Plaintiff opposes the motion.To the extent plaintiff objects to the late submission of the papers submitted by defendants 104-16, LLC and Golden Progress in relation to this motion, the Court, in an exercise of discretion, accepts and considers such papers.There has been no showing of any prejudice by the late submission (seeCPLR §2214[b]; 2215;Dinnocenzo v Jordache Enters., Inc., 213 A.D.2d 219[1995]).

To the extent defendants 104-16, LLC and Golden Progress assert that the complaint should be dismissed insofar as asserted against them, they have failed to cross-move for such relief by a proper notice of cross-motion and supporting papers (seeCPLR §2215;J.A. Volenti Elec. Co. v Power Line Constructors, 123 A.D.2d 604[1986];Matter of Briger's Estate,95 A.D.2d 887[1983]).The Court declines to exercise its discretion to entertain their request for affirmative relief in the absence of compliance with CPLR §2215(see generallyFried v Jacob Holding, Inc. , 110 A.D.3d 56[2013]).

DefendantP&C Merrick, in its notice of motion, cites CPLR §3212 and the General Obligations Law § 5-701(the statute of frauds), as the statutory bases upon which it moves to dismiss the complaint.A movant may seek summary judgment dismissing the complaint based upon the statute of frauds (see e.g.Zito v County of Suffolk, 106 A.D.3d 814[2013]), but CPLR §3212 requires that issue be joined prior to a party's making a motion for summary judgment(CPLR §3212[a];seeCity of Rochester v Chiarella, 65 N.Y.2d 92, 101[1985]).DefendantP&C Merrick, however, has failed to demonstrate issue has been joined with respect to it, and in any event denominates its motion, as one for dismissal of the complaint, insofar as asserted against it, "in lieu of answer."Thus, to the extent defendantP&C Merrick moves to dismiss the complaint pursuant to CPLR §3212, that branch of the motion is denied as premature (seeCity of Rochester v Chiarella,65 N.Y.2d 92, 101[1985]).

To the extent defendantP&C Merrick requests in its reply papers, that the court treat its motion as one for summary judgment dismissing the complaint insofar as asserted against it pursuant to CPLR §3211(c), the Court declines to do so.

Although defendantP&C Merrick has not formally and specifically requested relief pursuant to CPLR §3211(a), defendants 104-16, LLC and Golden Progress have not been prejudiced thereby, because they have been adequately apprised of the relief sought by defendantP&C Merrick, i.e. dismissal of the complaint, and the grounds for it.In the motion papers, defendantP&C Merrick contends that it is not in breach of the lease.DefendantP&C Merrick asserts it extended plaintiff, as the assignee of Anber Meat's rights under the lease, an opportunity to exercise the right of first refusal to purchase the property for the purchase price of $1, 900, 000.00, prior to its entering into the contract of sale with defendant 104-16, LLC, and that plaintiffscounsel acknowledged in writing plaintiffs declination to exercise such right.DefendantP&C Merrick also asserts that the contract of sale requires any amendment thereto must be in writing, and it has not agreed in writing to accept a $50, 000.00 reduction in the sales price, and therefore, no triggering event has occurred which activates plaintiffs right of first refusal.DefendantP&C Merrick further asserts that any oral amendment to the contract of sale is violative of the statute of frauds.These assertions, when taken together, amount to a claim by defendantP&C Merrick that the complaint fails to state a cause of action against it, and defenses exist based upon documentary evidence, and the statute of frauds (seeCPLR §3211 [a][l], [5] and [7]).

To the extent defendantP&C Merrick asserts that the complaint should be dismissed against it pursuant to General Obligations Law § 5-701, such section does not apply to "contracts concerning real property" covered by GOL § 5-703(seeNaldi v Grunberg,80 A.D.3d 1, 7[ 2010]).Section 5-703(2) of the GOL provides that a contract for the sale of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing.DefendantP&C Merrick has failed to move to dismiss the complaint insofar as asserted against it pursuant to General Obligations Law § 5-703(2)(CPLR §3211 [a][5]).More importantly, an oral agreement which falls within the statute of frauds is not absolutely invalid, but rather only is voidable, subject to being declared void if and when the statute is interposed as a defense at the proper time and in the proper way by the party sought to be charged (seeEuro/actors Intern., Inc. v Jacobowitz, 21 A.D.3d 443, 445[2005];see alsoFelicie, Inc. v Leibovitz, 67 A.D.2d 656[1979]).Any alleged violation of the statute of frauds regarding the contract of sale would be personal to the parties to such contract and would have no bearing on plaintiffs claims of breach of the lease and specific performance of the lease.DefendantP&C Merrick's claim that an oral amendment to the contract of sale is barred...