KAREN SYLVESTER v. KEVIN JONES (2023)

Recitation in accordance with CPLR 2219 of the papers considered on the notice of motion, filed on January 12, 2023, under motion sequence number two, by plaintiffs Kellie Sylvester and Karen Sylvester (hereinafter the movants) seeking an order pursuant to CPLR § 3212 granting summary judgment in their favor on the claims asserted against defendants Keshone Jones and Kevin Jones. The motion is unopposed,

Notice of motion

Affidavit in support

Affirmation in support

Exhibits A-F

Statement of material facts

BACKGROUND

On January 21, 2022, the movants commenced the instant action for breach of contract and for specific performance by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO). On January 25, 2022, the plaintiffs filed a notice of pendency with the KCCO.

On March 31, 2022, the defendants interposed and filed a joint verified answer with the KCCO.

The verified complaint alleges the following salient facts. The defendants own real property known as 480 Amboy Street, Brooklyn, New York (Block: 3610; Lot: 45) (hereinafter the subject premises). On or about March 5, 2020, the defendants, as sellers, entered a contract of sale (hereinafter the subject contract) with the plaintiffs to purchase the subject premises for a purchase price of $835,000.00. The subject contract was annexed as Exhibit A to the verified complaint. Upon execution of the contract, the plaintiffs paid the defendants a good faith down payment of $15,000.00. On April 9, 2021, the plaintiffs received a commitment letter from Whitman Mortgagee, and the plaintiffs were ready, willing, and able to close on the subject premises as the lender cleared the file to close.

Upon information and belief, the defendants at some point decided that they wanted to back out of the contract they had with the plaintiffs. On October 28, 2021, plaintiffs, by their attorney Gregory J. Tembeck, sent out a time is of the essence letter (pursuant to the terms of the contract) to the defendants' counsel, which called for a closing date of November 11, 2021, at the Law Offices of Gregory J. Tembeck, P.C. at 10 am, time being of the essence. The time of the essence letter was annexed as exhibit B to the verified complaint.

On November 11, 2021, the plaintiffs appeared at the Law Offices of Gregory J. Tembeck P.C. at 10:30 am ready, willing, and able to close title to the subject premises in accordance with the contract of sale. Neither the defendants nor their attorney appeared at the closing. Plaintiffs have performed all the obligations under the contract of sale and remain ready, willing, and able to close.

Defendants have refused and continue to refuse to convey marketable title to the subject premises to the plaintiffs in accordance with the contract of sale and have breached the contract of sale. As a result of the foregoing, defendants should be ordered to specifically perform pursuant to the contract of sale.

MOTION PAPERS

The plaintiffs' motion papers consist of the notice of motion, an affirmation of their counsel, and an affidavit of plaintiff Kellie Sylvester. The affirmation of plaintiffs' counsel refers to six annexed exhibits labeled A through F. Exhibit A is a copy of the subject contract. Exhibit B is a copy of a title report for the subject premises. Exhibit C is a copy of a part of the title report that was labeled part b of the report. Exhibit D is described as the commitment letter from Whitman Mortgagee. Exhibit E is a copy of the time of the essence letter. Exhibit F is a copy of the summons, verified complaint, Lis Pendens, defendants' answer, and an affidavit of

service of the commencement papers.

LAW AND APPLICATION

The plaintiffs seek summary judgment on their claim for breach of a contract to purchase the subject premises and seek an order of the Court directing the defendants to specifically perform the contract. The defendants did not submit opposition to the motion. However, a summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion, i.e. defaulted (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276, 278 n [1st Dept 2006], citing Vermont Teddy Bear Co., v 1—800 Beargram Co., 373 F3d 241 [2nd Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the ... Court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law"]; see Cugini v System Lumber Co., Inc., 111 AD2d 114 [1st Dept 1985]).

It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach (Cruz v Cruz, 213 AD3d 805 [2d Dept 2023]).

In moving for summary judgment on a complaint seeking specific performance of a contract, the plaintiff purchaser must submit evidence demonstrating financial ability to purchase the property to demonstrate that it was ready, willing, and able to purchase such property (Ashkenazi v. Miller, 190 AD3d 668 [2nd Dept 2021]). A party seeking specific performance of a real estate contract must establish that it was ready, willing, and able to perform its obligations under the contract on the original law day or, if time is not of the essence, on a subsequent date fixed by the parties or within a reasonable time thereafter (Zeitoune v. Cohen, 66 AD3d 889, 891 [2nd Dept. 2009]).

In the case at bar, the plaintiffs claim that the defendants' breached the contract of sale by not appearing for the closing date set by the plaintiffs in their time-of-the essence letter. Where time is not made of the essence in the original contract for the sale of real property, as was the case here, a party may subsequently give notice to that effect (see Guippone v. Gaias, 13 AD3d 339 [2nd Dept 2004] Mohen v. Mooney, 162 AD2d 664 [2nd Dept 1990]).

The notice setting a new date for the closing must (1) give clear, distinct, and unequivocal notice that time is of the essence, (2) give the other party a reasonable time in which to act, and (3) inform the other party that if he does not perform by the designated date, he will be considered in default (Nehmadi v. Davis, 63 AD3d 1125, 1127 [2nd Dept 2009]). It does not matter that the date is unilaterally set (Id). What constitutes a reasonable time for performance depends upon the facts and circumstances of the case (Zev v. Merman, 73 NY2d 781, 783 [1988]). Included within a court's determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance (Id.). The question of what constitutes a reasonable time is usually a question of fact (Rodrigues NBA, LLC v. Allied XV, LLC, 164 AD3d 1388, 1389 [2nd Dept 2018]).

The verified complaint includes the time of the essence letter sent by the plaintiffs to the defendants. The affirmation of plaintiffs' counsel established that they sent the annexed time of the essence letter to the defendants in the following manner. On October 28, 2021, the plaintiffs' counsel sent a letter to the defendants' counsel for next-day delivery containing the following verbatim message:

"Dear Mrs.Tsatis:

My office represents Kellie Sylvester & Karen Sylvester the Purchaser under the Contract on the above-referenced transaction, entitled "Agreement of Sale", wherein you represent the Seller, Keshone Jones & Kevin Jones. Pursuant to said Contract, the closing was to take place on or about April 05, 2021, at 10 am.

Please take notice that the Purchaser will be ready, willing, and able to close title in accordance with the aforementioned Contract of Sale at 10:00 a.m. on November 11, 2021 at the Law Offices of Gregory J. Tembeck, P.C. located at 120-05 Rockaway Blvd. 2nd Floor, South Ozone Park NY 11420 which time is hereby made of the essence of the contract.

If your clients fail to appear to close title at the said time and place in accordance with the terms of the Contract, the Contract will be deemed breached by reason of their default and Seller shall be entitled to retain the Contract Deposit as liquidated damages."

October 29, 2021, the expected date of delivery of the time of the essence letter, was a Friday. It is undisputed that the plaintiffs gave the defendants exactly eleven days total, or nine business days, if you leave out the weekend, to close. This raises a question of fact as to whether the time of the essence date set by the plaintiffs was reasonable. Based on the plaintiffs' evidentiary submission, the Court cannot determine that it was reasonable as a matter of law.

However, assuming for the sake of argument that it is a reasonable time, another issue is presented. The plaintiffs had already paid a $15,000.00 deposit toward the $835,000.00 purchase price for the subject premises. Plaintiffs' evidentiary submission included the mortgage commitment from Whitman Mortgage dated April 9, 2021, annexed as exhibit D to their motion papers. That mortgage commitment was for a purchase price of $834,604.00 and by its terms was set to expire on July 8, 2021. Assuming, for the sake of argument, that the closing date set by the plaintiffs in their time of essence letter was reasonable, the plaintiffs would have to demonstrate that they were ready, willing, and able to close on November 11, 2021. The loan commitment, however, expired four months prior to that date. The plaintiffs presented no evidence that the mortgage commitment had been or could be extended to November 11, 2021.Nor did they present any other evidence of their financial ability to close on the law day  ¹ .

Consequently, the plaintiffs did not eliminate all material issues of fact regarding the defendants' alleged breach of the contract of sale and their entitlement to specific performance. The plaintiffs' motion for summary judgment on its claim for breach of contract asserted against the defendants and for specific performance of the contract of sale is denied regardless of the sufficiency, or lack thereof, of opposing papers (Cugini v Sys. Lumber Co., 111 AD2d 114 [2nd Dept 1985]).

CONCLUSION

The motion by plaintiffs Kellie Sylvester and Karen Sylvester for an order pursuant to CPLR § 3212 granting summary judgment in their favor on the claims asserted against defendants Keshone Jones and Kevin Jones is denied.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.

FOOTNOTES

1.   The law day is the date scheduled for the closing of title.

Francois A. Rivera, J.