SONNENSCHEIN v. New York Deferred Exchange Corporation, Defendant. (2023)

Order, Supreme Court, Bronx County (Fidel E. Gomez, J.), entered June 9, 2022, which granted defendant 1986–F & S of New York, Ltd.’s motion to dismiss the complaint, unanimously affirmed, with costs.

1986–F&S was entitled to dismissal of the causes of action for both specific performance and breach of contract, the only two causes of action in the complaint, as the documentary evidence utterly refuted the allegations in those causes of action and established defenses to them as a matter of law (see 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 [2002];  M & E 73–75 LLC v. 57 Fusion LLC, 189 A.D.3d 1, 6, 128 N.Y.S.3d 200 [1st Dept. 2020], lv dismissed 36 N.Y.3d 1086, 142 N.Y.S.3d 884, 166 N.E.3d 1062 [2021]).  The correspondence that 1986–F&S submitted on its motion conclusively demonstrates that plaintiffs were not ready, willing, and able to close either by the duly noticed “time is of the essence” closing date or by the later final closing date, because, as stated in emails from the commercial properties broker to 1986–F&S, plaintiffs did not have the requisite financing to pay the balance of the purchase price on either closing date.  As a result, plaintiffs are precluded from seeking an award of both money damages and specific performance (see M & E 73–75, 189 A.D.3d at 6, 128 N.Y.S.3d 200;  3801 Review Realty LLC v. Review Realty Co. LLC, 111 A.D.3d 509, 510, 975 N.Y.S.2d 36 [1st Dept. 2013];).

We reject plaintiffs’ conclusory allegations that they were ready, willing, and able to close, as they submitted no evidence of their financial ability to pay the balance of the purchase price on the time of the essence date or the final closing date (see LAIG v. Medanito S.A., 139 A.D.3d 424, 29 N.Y.S.3d 166 [1st Dept. 2016]).  Nor did plaintiffs submit any evidence suggesting that they did not close because 1986–F&S was unable to deliver an insurable title and thus was itself not ready, willing, and able to close by the time is of the essence date (see Prana Partners v. Brittbran Realty, Inc., 12 A.D.3d 198, 783 N.Y.S.2d 811 [1st Dept. 2004]).

We decline to consider plaintiffs’ argument regarding the purported assignment to defendant New York Deferred Exchange Corporation, as it is improperly made for the first time on appeal and does not involve purely legal issues that could not have been avoided if raised before Supreme Court (see Tsai v. Lo, 212 A.D.3d 547, 548–549, 183 N.Y.S.3d 77 [1st Dept. 2023]).