Del Pozo v. Impressive Homes, Inc.

• Decision Date: 30 May 2012
• Parties: Patricia DEL POZO, appellant, v. IMPRESSIVE HOMES, INC., et al., defendants, Merci Astudillo, et al., respondents.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1268

945 N.Y.S.2d 368

2012 N.Y. Slip Op. 04128

Patricia DEL POZO, appellant,

v. IMPRESSIVE HOMES, INC., et al., defendants,Merci Astudillo, et al., respondents.

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

May 30, 2012.

Kevin Kerveng Tung, P.C., Flushing, N.Y. (Kenji Fukuda of counsel), for appellant.

Eric P. Rosenberg, New York, N.Y., for respondents Merci Astudillo, Bolivar Astudillo, and HSBC Mortgage Corporation (USA), and Belkin Burden Wenig & Goldman, LLP, New York, N.Y. (William M. Rifkin and David R. Brand of counsel), for respondent Citibank, N.A. (one brief filed).

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.

In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Elliot, J.), entered March 4, 2011, which granted the separate motions of the defendant HSBC Mortgage Corporation (USA) and the defendants Merci Astudillo and Bolivar Astudillo, and that branch of the separate motion of the defendant Citibank, N.A., which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed, on the law, with costs, and the separate motions of the defendant HSBC Mortgage Corporation (USA) and the defendants Merci Astudillo and Bolivar Astudillo, and that branch of the separate motion of the defendant Citibank, N.A., which were for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

By deed dated April 5, 2002, Impressive Homes, Inc. (hereinafter IHI), acquired a vacant lot located at 35–17 101st Street, Corona, and designated on the tax map of the City of New York as Block 1742, Lot 49 (hereinafter Lot 49). The approximate size of this lot is 45 feet by 100 feet. Pursuant to a separate deed, also dated April 5, 2002, IHI acquired the neighboring lot (hereinafter Lot 46), which was designated with the identical street address. However, the neighboring lot was designated on the tax map as Block 1742, Lot 46. The size of Lot 46 is 50 feet by 100 feet.

Thereafter, the plaintiff and IHI entered into a contract of sale (hereinafter the subject contract) dated June 7, 2002, pursuant to which the plaintiff agreed to purchase certain real property identified with a street address of 35–13 101st Street, Corona, and a tax map designation of “Block: 1742, Lot: 49–Part of Old Lot 49” (hereinafter Contract Lot No. 1). The subject contract also recited that the size of Contract Lot No. 1 was 25 feet by 100 feet. Pursuant to the rider to the contract, IHI agreed to build a three-family home on Contract Lot No. 1. On the same date, IHI also entered into a separate contract of sale with the plaintiff's brother-in-law, pursuant to which the brother-in-law agreed to purchase certain real property, with a street address of 35–15 101st Street, Corona, and identified as “Block: 1742, Lot: 49 (Part of Old Lot 49)-Lot Size: 25 x 100” (hereinafter Contract Lot No. 2). IHI agreed to build a separate three-family home on Contract Lot No. 2.

At the time that IHI entered into the subject contract with the plaintiff, and the separate contract with her brother-in-law, Lot 49 had yet to be subdivided into two separate lots.

Counsel for IHI cancelled the two contracts by letters, both dated February 2, 2004, contending that IHI was unable to complete construction as required pursuant to the terms of the contracts. The contract down payments were returned to the plaintiff and her brother-in-law.

On February 23, 2004, the plaintiff commenced this action against IHI for, inter alia, specific performance of the subject contract. On March 5, 2004, the plaintiff filed a notice of pendency against Contract Lot No. 1.

Subsequently, pursuant to deeds dated December 1, 2005, IHI transferred two properties, identified as Block 1742, Lot 49, with a property address of “N/A 101st Street,” and “Block 1742 New Lot 48 (part of lots 49 and 46),” with a property address of 35–17 101st Street, to Corona Gardens, Inc. By deeds dated April 27, 2006, Corona Gardens, Inc., in turn conveyed these properties to KFIR Group, LLC (hereinafter KFIR). The deed to KFIR concerning the property which had previously been known as Lot 49 identified the property as “New Lot 50 (part of old lot 46),” deleting any reference to the prior lot designation, Lot 49, and stating that the property had a street address of 35–11 101st Street. The other deed to KFIR now identified the property as having a street address of 35–15 101st Street, rather than 35–17 101st Street. A correction deed, dated December 12, 2006, was eventually executed with respect to the “New Lot 50,” clarifying that “New Lot 50” was a resultant lot of the prior Lot 49, and not Lot 46.

On September 15, 2006, KFIR entered into two contracts of sale with Merci Astudillo and Bolivar Astudillo (hereinafter together the Astudillos) for the sale of the two properties, upon each of which KFIR agreed to construct a three-family home. The Astudillos obtained mortgages from HSBC Mortgage Corporation (USA) (hereinafter HSBC) and Citibank, N.A. (hereinafter Citibank), respectively, to finance the purchase of these properties.

After obtaining an order dated May 21, 2007, extending the notice of pendency for an additional three years, the plaintiff amended her complaint to include, among others, the Astudillos, HSBC, and Citibank as additional defendants. In her second amended complaint, the plaintiff alleged that, after she filed that notice of pendency, the Astudillos, HSBC, and Citibank improperly obtained interests in or encumbered the properties that she was entitled to purchase pursuant to the subject contract. Thus, the plaintiff sought to annul the interests and encumbrances in the subject property claimed by HSBC, Citibank, and the Astudillos.

HSBC and the Astudillos each moved for summary judgment dismissing the complaint insofar as asserted against each of them, and Citibank separately moved, inter alia, for the same relief. The Supreme Court awarded summary judgment to HSBC, Citibank, and the Astudillos dismissing the complaint insofar as asserted against them, concluding that they established that the subject contract failed to describe the property with sufficient particularity to satisfy the statute of frauds. The plaintiff appeals, and we reverse.

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