HUANG v. SHIH (2026)

DECISION & ORDER

In an action for specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered August 13, 2024.  The order denied the plaintiff's motion pursuant to CPLR 5107 to direct the Sheriff of Queens County to convey the subject real property to the plaintiff and granted the defendants’ cross-motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In May 2006, the plaintiff, as purchaser, entered into a contract with the defendants, as sellers, to purchase certain real property located in Queens.  A provision of the contract rider required the defendants, at closing, to provide to the plaintiff a certificate of occupancy for the property if the municipality required such a certificate.  At the closing on December 26, 2006, the defendants did not provide a certificate of occupancy and instead asserted that none was required by the municipality.  The plaintiff refused to close.

Thereafter, the plaintiff commenced this action for specific performance of the contract.  The defendants moved, inter alia, for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the complaint.  In an order entered October 23, 2008 (hereinafter the 2008 order), the Supreme Court, among other things, denied that branch of the defendants’ motion and granted the plaintiff's cross-motion.  The defendants appealed, and in a decision and order dated May 18, 2010 (hereinafter the 2010 decision and order), this Court, inter alia, affirmed the 2008 order insofar as appealed from (see Huang v. Shih, 73 A.D.3d 981, 904 N.Y.S.2d 433).  This Court determined, among other things, that the plaintiff had properly been awarded summary judgment on the complaint directing specific performance because the defendants had “breached their contractual duty to either provide a certificate of occupancy or provide proof that none was necessary” (id. at 982, 904 N.Y.S.2d 433).

In September 2011, the defendants provided the plaintiff with a certificate of occupancy report that stated that no certificate of occupancy existed for the subject property, that the building on the property was completed in 1917, and that the New York City Department of Buildings (hereinafter DOB) did not require a certificate of occupancy for buildings completed before 1938.  The defendants then sent a letter to the plaintiff dated October 26, 2011, notifying her that they were setting a closing date of November 15, 2011, that time was of the essence, and that if the plaintiff failed to appear, she would be in default.  The plaintiff did not appear.

In November 2018, the plaintiff moved, inter alia, for the appointment of a receiver to effectuate the conveyance of the subject property to the plaintiff, arguing that the defendants had failed to comply with the 2008 order and the 2010 decision and order by failing to provide proof that no certificate of occupancy was required because the defendants did not produce a “Letter of No Objection” from the DOB. The Supreme Court denied the plaintiff's motion in an order entered June 14, 2019.  The plaintiff appealed from that order, and in a decision and order dated November 23, 2022, this Court affirmed the order insofar as appealed from (see Huang v. Shih, 210 A.D.3d 946, 178 N.Y.S.3d 214).  This Court determined, among other things, that “the defendants complied with the orders of the Supreme Court and this Court determining that the plaintiff was entitled to specific performance by providing notice to the plaintiff that they were setting a closing date of November 15, 2011, and by providing the plaintiff with the certificate of occupancy report showing that no certificate of occupancy was required for the subject property” (id. at 948, 178 N.Y.S.3d 214).  This Court also noted that “[t]he plaintiff has not identified any language in the parties’ contract, or any other authority, that supports her position that a certificate of occupancy report is not sufficient to satisfy the defendants’ contractual obligation to prove that no certificate of occupancy was necessary, and that this obligation could be satisfied only through a ‘Letter of No Objection’ from the DOB” (id.).

Thereafter, the plaintiff moved pursuant to CPLR 5107 to direct the Sheriff of Queens County to convey the subject property to her.  The plaintiff again argued that the defendants had failed to comply with the 2008 order and the 2010 decision and order by failing to provide proof that no certificate of occupancy was required because the defendants did not produce a “Letter of No Objection” from the DOB. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing that the plaintiff defaulted by failing to appear at the time-of-the-essence closing on November 15, 2011.  In an order entered August 13, 2024, the Supreme Court denied the plaintiff's motion and granted the defendants’ cross-motion for summary judgment dismissing the complaint.  The plaintiff appeals.

“The doctrine of the ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” (Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867;  see Ramanathan v. Aharon, 109 A.D.3d 529, 530, 970 N.Y.S.2d 574).  “The doctrine of the law of the case applies to legal determinations that were necessarily resolved on the merits in the prior decision, and to the same questions presented in the same case, and where the parties had a full and fair opportunity to litigate the initial determination” (Nemeroff v. Hamptons Little Neck, LLC, 228 A.D.3d 877, 878, 215 N.Y.S.3d 110 [citations and internal quotation marks omitted];  see Wieder v. Home Depot U.S.A., Inc., 208 A.D.3d 535, 538, 172 N.Y.S.3d 474;  Fidler v. Gordon–Herricks Corp., 173 A.D.3d 840, 841, 104 N.Y.S.3d 191).  “[T]his Court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the appellate court” (Matter of Hanlon, 189 A.D.3d 1405, 1408, 139 N.Y.S.3d 265;  see Northern Blvd Corona, LLC v. Northern Blvd Prop., LLC, 181 A.D.3d 690, 691, 117 N.Y.S.3d 863).

Here, upon reviewing the Supreme Court's order entered June 14, 2019, denying the plaintiff's motion, inter alia, for the appointment of a receiver to effectuate the conveyance of the subject property to the plaintiff, this Court affirmed the order insofar as appealed from and determined that the defendants complied with the 2008 order and the 2010 decision and order by providing notice to the plaintiff that they were setting a closing date of November 15, 2011, and by providing the plaintiff with the certificate of occupancy report (see Huang v. Shih, 210 A.D.3d at 948, 178 N.Y.S.3d 214).  On that prior appeal, this Court considered and rejected the plaintiff's contention that the contract required the defendants to provide a “Letter of No Objection” from the DOB (see id.).  The plaintiff has not made a sufficient showing to warrant reexamination of that issue (see Matter of Hanlon, 189 A.D.3d at 1408, 139 N.Y.S.3d 265;  Northern Blvd Corona, LLC v. Northern Blvd Prop., LLC, 181 A.D.3d at 691, 117 N.Y.S.3d 863).

“When a contract for the sale of real property does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless of whether the contract designates a specific date for performance” (Revital Realty Group, LLC v. Ulano Corp., 112 A.D.3d 902, 904, 978 N.Y.S.2d 77).  “Time may be made of the essence by ‘clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time in which to act’ ” (id., quoting Zev v. Merman, 134 A.D.2d 555, 557, 521 N.Y.S.2d 455, affd 73 N.Y.2d 781, 536 N.Y.S.2d 739, 533 N.E.2d 669;  see Kugel v. Reynolds, 228 A.D.3d 743, 747, 214 N.Y.S.3d 700).  “[W]hen a party to a real estate contract declares time to be of the essence in setting a closing date, each party must tender performance on that date, and a failure to perform constitutes a default” (Sweeney v. Stark, 216 A.D.3d 1193, 1197, 190 N.Y.S.3d 140 [internal quotation marks omitted] ).  “Where a seller seeks to hold a purchaser in breach of contract, the seller must establish that he or she was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close” (Duvernay v. Qiao, 240 A.D.3d 855, 857, 240 N.Y.S.3d 426 [internal quotation marks omitted];  see Artzy v. Specialized Loan Servicing, LLC, 242 A.D.3d 803, 805, 244 N.Y.S.3d 558).

Here, the defendants’ letter dated October 26, 2011, provided sufficient notice to the plaintiff that time was of the essence, gave the plaintiff a reasonable time in which to act, and informed the plaintiff that if she did not perform by November 15, 2011, she would be considered in default (see Sikorsky v. City of Newburgh, N.Y., 188 A.D.3d 1112, 1114, 136 N.Y.S.3d 362).  The defendants satisfied their prima facie burden of demonstrating that they were ready, willing, and able to perform on the time-of-the-essence closing date and that the plaintiff failed to demonstrate a lawful excuse for her failure to close (see Duvernay v. Qiao, 240 A.D.3d at 857, 240 N.Y.S.3d 426).  In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contention, raised for the first time on appeal, is not properly before this Court (see Matter of Douglas Elliman of LI, LLC v. O'Callaghan, 220 A.D.3d 945, 947, 198 N.Y.S.3d 388;  344 Rockaway Parkway Inv. Group, LLC v. Estate of Colon, 219 A.D.3d 1388, 1388, 196 N.Y.S.3d 138).

Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 5107 to direct the Sheriff of Queens County to convey the subject property to her and granted the defendants’ cross-motion for summary judgment dismissing the complaint.

IANNACCI, J.P., FORD, VENTURA and QUIRK, JJ., concur.