CHO v. 401 403 57TH STREET REALTY CORP (2002)

Order, Supreme Court, New York County (Richard Braun, J.), entered November 9, 2000, which, to the extent appealed and cross-appealed from, denied, in part, defendants' motion pursuant to CPLR 3212 to dismiss the complaint, and granted, in part, plaintiffs' motion to compel production of documents, unanimously affirmed, without costs.

 With regard to plaintiffs' breach of contract claim, Supreme Court properly determined that there are triable issues of fact precluding summary judgment as to whether defendants' alleged failure to provide financial disclosure, as required by the parties' prior stipulation, precluded plaintiffs from exercising the option, created by the stipulation, to repurchase shares in two closely held real estate corporations (see Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

 Moreover, Supreme Court did not err in refusing to dismiss plaintiffs' third cause of action for declaratory judgment and specific performance.   In general, specific performance is appropriate when money damages would be inadequate to protect the “expectation interest of the injured party” (Restatement [Second] of Contracts § 359;  see also Sokoloff v. Harriman Estates Development Corp., 96 N.Y.2d 409, 415, 729 N.Y.S.2d 425, 754 N.E.2d 184) and when performance will not impose a disproportionate or inequitable burden on the breaching party (see Restatement [Second] of Contracts § 364[1] [b];  Van Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186, 193, 501 N.Y.S.2d 628, 492 N.E.2d 756).   Traditionally, specific performance has been held to be a proper remedy in actions for breach of contract for the sale of real property (see e.g. Judnick Realty Corp. v. 32 W. 32nd Street Corp., 61 N.Y.2d 819, 473 N.Y.S.2d 954, 462 N.E.2d 131) or when the uniqueness of the goods in question makes calculation of money damages too difficult or too uncertain (see Van Wagner Advertising, supra, 67 N.Y.2d at 193, 501 N.Y.S.2d 628, 492 N.E.2d 756;  see also UCC § 2-716).   Similarly, agreements to convey shares of stock in a close corporation may be enforced by specific performance (see e.g. In the Matter of Fontana D'Oro Foods, Inc., 65 N.Y.2d 886, 888, 493 N.Y.S.2d 300, 482 N.E.2d 1216;  Triggs v. Triggs, 61 A.D.2d 911, 402 N.Y.S.2d 820, affd. 46 N.Y.2d 305, 413 N.Y.S.2d 325, 385 N.E.2d 1254), as may an agreement to sell shares in a cooperative real estate corporation (see Kaplan v. Lippman, 75 N.Y.2d 320, 552 N.Y.S.2d 903, 552 N.E.2d 151).

 “The decision whether or not to award specific performance is one that rests in the sound discretion of the trial court” (Sokoloff v. Harriman Estates Development Corp., supra, 96 N.Y.2d at 415, 729 N.Y.S.2d 425, 754 N.E.2d 184).   In determining whether to grant specific performance, the trial court must determine, in the first instance, whether money damages would be an adequate remedy by considering, “among other factors, the difficulty of proving damages with reasonable certainty and of procuring a suitable substitute performance with a damages award” (Sokoloff v. Harriman Estates Development Corp., supra, 96 N.Y.2d at 415, 729 N.Y.S.2d 425, 754 N.E.2d 184).

 Here, Supreme Court determined that the same factual issues that remained as to plaintiff's breach of contract cause of action underlay plaintiff's plea for specific performance.   We note that specific performance is an equitable remedy for a breach of contract, rather than a separate cause of action.   In any event, in view of the allegations of this complaint and the nature of the corporate shares in question, we concur with Supreme Court that whether plaintiff may be entitled to specific performance is a matter that should be determined by the trial court on a fuller record, not on a motion to dismiss (see Sokoloff v. Harriman Estates Development Corp., supra, 96 N.Y.2d at 415, 729 N.Y.S.2d 425, 754 N.E.2d 184).

As to parties' challenges to Supreme Court's disclosure directives, there is no basis for this Court to disturb the order, as such directives fall well within the broad discretion afforded to the trial courts in the area of discovery (see e.g. Daniels v. City of New York, 291 A.D.2d 260, 737 N.Y.S.2d 598).