Louzon v. Gentry Apts., Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: Louzon v. Gentry Apts., Inc., 191 A.D.3d 776, 142 N.Y.S.3d 184 (N.Y. App. Div. 2021)
• Decision Date: 10 February 2021
• Docket Number: Index No. 507733/17,2018–04526
• Parties: Amit LOUZON, etc., et al., respondents, v. GENTRY APTS., INC., appellant, et al., defendants.

191 A.D.3d 776

142 N.Y.S.3d 184

Amit LOUZON, etc., et al., respondents,

v.GENTRY APTS., INC., appellant, et al., defendants.

2018–04526

Index No. 507733/17

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

Argued—November 17, 2020

February 10, 2021

Braverman Greenspun, P.C., New York, N.Y. (Scott S. Greenspun and Lauren Piechocki of counsel), for appellant.

Paula A. Miller, P.C., Smithtown, NY, for respondents.

WILLIAM F. MASTRO, A.P.J., LEONARD B. AUSTIN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, for declaratory relief and to recover damages for breach of contract, the defendant Gentry Apts., Inc., appeals from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated March 9, 2018. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first through sixth causes of action of the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff East Fork Funding, LLC (hereinafter East Fork), was the high bidder at a public auction for a cooperative apartment in a building owned by the defendant Gentry Apts., Inc. (hereinafter Gentry). East Fork, by one of its members, and Gentry, by counsel, entered into a memorandum of sale for the purchase of the shares of stock and the proprietary lease allocated to the subject apartment, and East Fork submitted a down payment in the amount of $20,150. Subsequently, the defendant FirstService Residential New York, Inc. (hereinafter FirstService), Gentry's managing agent, informed East Fork that a limited liability company was ineligible to receive the shares of stock and the proprietary lease for the apartment, an aspect of the transaction that allegedly had not been previously communicated to East Fork. Upon the advice of FirstService that the bid would have to be assigned to an individual, East Fork assigned the bid to the plaintiff Amit Louzon, one of its members. Gentry, however, rejected Louzon's application for approval on the basis that East Fork had not secured Gentry's express written consent prior to executing the assignment, as required under the terms of sale of the auction, and Gentry eventually returned the down payment to East Fork.

The plaintiffs subsequently commenced this action, inter alia, for declaratory relief and to recover damages for breach of contract. Gentry moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it. In an order dated March 9, 2018, the Supreme Court, among other things, denied those branches of Gentry's motion which were to dismiss the first through sixth causes of action of the complaint insofar as asserted against it. Gentry appeals.

On a motion to dismiss pursuant to CPLR 3211(a), the court " ‘must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory’ " ( Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Servs., Inc., 20 N.Y.3d 59, 63, 956 N.Y.S.2d 439, 980 N.E.2d 487, quoting Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184 ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). To prevail on a motion to dismiss pursuant to CPLR 3211(a)(1), a defendant must demonstrate that the proffered documentary evidence "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ). In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as "documentary evidence," it must be "unambiguous and of...