GOODMAN v. RICHARDSON III (2026)

DECISION & ORDER

In an action, inter alia, to recover a down payment made pursuant to a contract of sale, the defendants appeal from (1) an order and judgment (one paper) of the Supreme Court, Kings County (Robin K. Sheares, J.), dated May 4, 2023, and (2) a money judgment of the same court dated October 27, 2023.  The order and judgment, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the complaint, and denied the defendants' cross-motion for summary judgment dismissing the complaint.  The money judgment is in favor of the plaintiff and against the defendants in the principal sum of $63,250.

ORDERED that the appeal from so much of the order and judgment as granted those branches of the plaintiff's motion which were for summary judgment on the second and third causes of action and denied those branches of the defendants' cross-motion which were for summary judgment dismissing those causes of action is dismissed;  and it is further,

ORDERED that the order and judgment is affirmed insofar as reviewed;  and it is further,

ORDERED that the money judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from so much of the order and judgment as granted those branches of the plaintiff's motion which were for summary judgment on the second and third causes of action and denied those branches of the defendants' cross-motion which were for summary judgment dismissing those causes of action must be dismissed because those portions of the order and judgment were superseded by the money judgment (see Burns v. Burns, 229 AD3d 675, 676;  Christopulos v. Christopulos, 209 AD3d 970, 970;  Cathedral Props.  Corp. v. Cathedral Ct. Assoc., L.P., 177 AD3d 843, 844).  The issues raised on the appeal from so much of the order and judgment as granted those branches of the plaintiff's motion and denied those branches of the defendants' cross-motion are brought up for review and have been considered on the appeal from the money judgment (see Matter of Ruth S., 238 AD3d 1051, 1052;  Burns v. Burns, 229 AD3d at 676).

In May 2019, the plaintiff entered into a contract to purchase a cooperative apartment unit (hereinafter the apartment) from the Miriam Newman Trust (hereinafter the trust), of which the defendant Stephen Entmann was a trustee.  Pursuant to the contract, the plaintiff made a down payment of $63,250, with the defendant Ambrose Madison Richardson III, the trust's attorney, acting as escrowee.  The contract provided that the closing was to occur on May 30, 2019, or 30 days after the execution of the contract.

Miriam Newman, the owner of the apartment, died intestate on March 8, 2019, approximately two months prior to the execution of the contract of sale.  Upon her death, the apartment passed to the estate of Miriam Newman (hereinafter the estate).  In November 2019, the Public Administrator of Kings County (hereinafter KCPA) obtained temporary letters of administration over the estate, and ultimately sold the apartment to a third party.

In March 2020, the plaintiff sent notice to Richardson that she was terminating the contract of sale because the trust did not have the right to sell the apartment, and demanding that her down payment be returned.  In or about June 2020, the trust commenced an action against the cooperative board, which was resolved by a settlement agreement.  Pursuant to that settlement agreement, the trust agreed that KCPA had the right to sell or transfer the apartment.

Thereafter, the plaintiff commenced this action, inter alia, to recover her down payment.  The plaintiff subsequently moved, among other things, for summary judgment on the complaint.  The defendants cross-moved for summary judgment dismissing the complaint.  In an order and judgment dated May 4, 2023, the Supreme Court, inter alia, granted that branch of the plaintiff's motion and denied the defendants' cross-motion.  The court entered a money judgment dated October 27, 2023, in favor of the plaintiff and against the defendants in the principal sum of $63,250.  The defendants appeal.

“To prevail on a cause of action for the return of a down payment on a contract for the sale of real property, the plaintiff must establish that the defendant breached or repudiated the contract and that the plaintiff was ready, willing, and able to perform on the closing date” (Yu Ling Hu v. Zapas, 108 AD3d 621, 621;  see Perelmuter v. LRM Bldrs., LLC, 230 AD3d 1165, 1167).

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that, despite the trust representing that it was the owner of the apartment with the authority to convey the apartment to the plaintiff, the trust was not the record titleholder at the time the contract was executed and did not obtain the authority to convey the apartment.  The contract was thus void ab initio and the plaintiff was entitled to the return of her down payment (see Yu Ling Hu v. Zapas, 108 AD3d at 621–622;  S & S Mgt., LLC v. Berk, 65 AD3d 1031, 1032;  cf.  Braunstein v. County of Rockland, 195 AD3d 585, 588).  In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).  Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint and denied the defendants' cross-motion for summary judgment dismissing the complaint.

The defendants' remaining contentions are without merit.

IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.