RABIZADEH v. 165 66 LLC (2025)

Judgment (denominated an order), Supreme Court, New York County (Jennifer G. Schecter, J.), entered April 10, 2024, which granted the motion of defendant 165 E 66, LLC to dismiss the amended complaint and to cancel the notice of pendency, unanimously affirmed, with costs.

Supreme Court correctly dismissed plaintiff's breach of contract cause of action against defendant because the parties' purchase and sale agreement does not support any of plaintiff's claims (see e.g. Gordon v. Curtis, 68 A.D.3d 549, 893 N.Y.S.2d 6 [1st Dept. 2009], lv denied 14 N.Y.3d 713, 2010 WL 2301674 [2010]).  The agreement placed no obligation on defendant to provide plaintiff with additional documents and information to ascertain alleged discrepancies in defendant's representations.  Rather, plaintiff's sole remedy for discovering any misrepresentations prior to closing was to terminate the agreement and receive a refund of his Initial Deposit.  Moreover, by executing the agreement, plaintiff acknowledged that he examined and inspected the tenants' lease files and other requested documents and had an opportunity to inspect and investigate the “records applicable to the Premises ․”  Nor does Section 9.2.2 of the agreement counsel a different result.  That section merely allowed plaintiff, at the closing, to seek damages related to alleged misrepresentations if they had a “material adverse effect” on the value of the property.  Notably, it remained within defendant's sole discretion whether to pay the damages sought and, under any outcome, plaintiff was still required to close and pay the purchase price.

Plaintiff's claim for an executed memorandum of agreement was properly dismissed, as the agreement placed no obligation on defendant to execute it by a certain date.  And, in any event, plaintiff was already in breach of the agreement at that time because he had failed to pay the Additional Deposit by the date listed in the agreement (see e.g. Stracham v. Bresnick, 76 A.D.3d 1009, 1010–1011, 908 N.Y.S.2d 95 [2d Dept. 2010]).  Finally, the agreement stated that the Initial Deposit, unlike the Additional Deposit, must be wired “directly to Seller [defendant]” rather than to an escrow agent.  Plaintiff's allegation of scrivener's error failed to overcome the “heavy presumption that a deliberately prepared and executed written instrument manifest[s] the true intention of the parties” (Stonebridge Capital, LLC v. Nomura Intl. PLC, 68 A.D.3d 546, 548, 891 N.Y.S.2d 56 [1st Dept. 2009], lv dismissed 15 N.Y.3d 735, 905 N.Y.S.2d 801, 931 N.E.2d 1057 [2010] [internal quotation marks omitted]).

Plaintiff's claim for breach of the implied covenant of good faith and fair dealing was properly dismissed, as it improperly seeks to create rights that are not provided by the agreement (see Peter R. Friedman, Ltd. v. Tishman Speyer Hudson L.P., 107 A.D.3d 569, 570, 968 N.Y.S.2d 41 [1st Dept. 2013]).  His claim for a declaratory judgment was properly dismissed as duplicative of the breach of contract claim as it is based on the same allegations underpinning his contractual claims and seeks a declaration of the same rights and obligations arising under the agreement (see Tahari v. Narkis, 216 A.D.3d 557, 560, 190 N.Y.S.3d 16 [1st Dept. 2023]).  Thus, there is no need for a declaration in defendant's favor (see id.;  see also KNIC LLC v. New York City Econ. Dev. Corp., 198 A.D.3d 481, 482, 156 N.Y.S.3d 156 [1st Dept. 2021]).  Finally, the notice of pendency was correctly cancelled, as plaintiff does not have a valid claim (see Commandment Keepers Ethiopian Hebrew Congregation of the Living God, Pillar & Ground of Truth, Inc. v. 31 Mount Morris Park, LLC, 76 A.D.3d 465, 465–466, 908 N.Y.S.2d 1 [1st Dept. 2010]).

We have considered plaintiff's remaining contentions and find them unavailing.