Ravina v. Hsing Hsung Chuang

• Decision Date: 30 May 2012
• Citation: Ravina v. Hsing Hsung Chuang, 95 A.D.3d 1288, 945 N.Y.S.2d 411, 2012 N.Y. Slip Op. 4143 (N.Y. App. Div. 2012)
• Parties: Louis RAVINA, etc., respondent, v. HSING HSUNG CHUANG, et al., appellants.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1288

945 N.Y.S.2d 411

2012 N.Y. Slip Op. 04143

Louis RAVINA, etc., respondent,

v.HSING HSUNG CHUANG, et al., appellants.

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

May 30, 2012.

Paul Batista, P.C., New York, N.Y., for appellants.

Uncyk, Borenkind & Nadler, LLP, New York, N.Y. (Jeffrey S. Kofsky, Eli Uncyk, and Alan Borenkind of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action for a judgment declaring that the plaintiff is entitled to receive and retain, as liquidated damages, a down payment given pursuant to a contract for the sale of real property, the defendants appeal from a judgment of the Supreme Court, Queens County (Brathwaite Nelson, J.), entered March 31, 2011, which, upon an order of the same court dated May 26, 2010, granting the plaintiff's motion for summary judgment and denying their cross motion for summary judgment on their counterclaim to recover the down payment, declared that the defendants were in default under the parties' contract and that the plaintiff was entitled to receive and retain the down payment and accumulated interest held in escrow by his attorney.

ORDERED that the judgment is affirmed, with costs.

Initially, we note that the defendants previously appealed from an order dated May 26, 2010, upon which the judgment appealed from was entered. That appeal was dismissed by this Court for failure to prosecute. Although the defendants ordinarily would be precluded from relitigating the issues which could have been raised on the prior appeal ( see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86;Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575), under all of the circumstances of the case, we exercise our discretion to determine the issues raised on the instant appeal ( see Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864;Ho Sports, Inc. v. Meridian Sports, Inc., 92 A.D.3d 915, 916, 939 N.Y.S.2d 140;Scalcione v. Winthrop Univ. Hosp., 53 A.D.3d 605, 606, 863 N.Y.S.2d 42).

On July 19, 2007, the plaintiff entered into a contract to sell commercial premises in the Greenpoint section of Brooklyn to the defendants for the sum of $1,900,000. Upon signing the contract, the defendants tendered a $190,000 down payment to be held in escrow by the plaintiff's attorney. Section 16 of the contract afforded the defendants a “due diligence period” to inspect the premises for the presence or absence of hazardous substances. The defendants were given 45 days to conduct such inspection and provide the plaintiff a copy of the resulting report. In the event the report concluded that there were hazardous substances on the premises, the defendants could cancel the contract by written notice within the 45–day due diligence period, unless the plaintiff advised them that he was electing to remediate the condition. The contract further specified that “time shall be of the essence with respect to purchaser's actions pursuant to this Section 16.”

It is undisputed that the 45–day due diligence period passed without the defendants either inspecting the premises, or requesting an extension of the due diligence period. The plaintiff informed the defendants that they had, therefore, waived their right to cancel the contract on the ground that there were hazardous substances on the premises. The plaintiff repeatedly requested that the defendants close title, and, after several adjournments of proposed closing dates, the plaintiff declared that time was of the essence, and set a date for closing. Although the plaintiff thereafter agreed to adjourn the closing to April 2, 2008, the defendants failed to appear for closing on that date.

The plaintiff subsequently commenced this action against the defendants, alleging that they had defaulted on the contract by...