DRUZHINSKY v. TRUMP VILLAGE SECTION INC (2026)

DECISION & ORDER

In an action to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated October 9, 2024, and (2) a judgment of the same court dated January 6, 2025.  The order granted the plaintiff's motion for summary judgment on the complaint and denied the defendant's cross-motion for summary judgment dismissing the complaint and on its first counterclaim.  The judgment, upon an order of the same court dated November 29, 2023, inter alia, denying the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint, for an award of attorneys' fees, and pursuant to 22 NYCRR 130–1.1 to impose sanctions against the plaintiff and/or his counsel, and upon the order dated October 9, 2024, is in favor of the plaintiff and against the defendant in the total sum of $129,230.67.

ORDERED that the appeal from the order dated October 9, 2024, is dismissed;  and it is further,

ORDERED that the judgment is reversed, on the law, the plaintiff's motion for summary judgment on the complaint is denied, the defendant's cross-motion for summary judgment dismissing the complaint and on its first counterclaim is granted, the order dated October 9, 2024, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine the amount of reasonable attorneys' fees to be awarded to the defendant and for the entry of an appropriate amended judgment thereafter;  and it is further,

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

The appeal from the order dated October 9, 2024, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

On June 21, 2022, a public auction was held on behalf of the defendant, a cooperative apartment corporation, for the purpose of foreclosing upon and selling 16 shares of its common stock and an accessory proprietary lease.  The plaintiff successfully bid on the shares, tendered a down payment, and executed a memorandum of sale, agreeing to comply with a terms of sale.  The terms of sale provided that the purchase of the shares of stock was subject to the defendant's approval and that:  “The purchaser agrees to submit an application to the board of the Cooperative Corporation, in a form subscribed by the Board, within five (5) days after the date of the auction sale.”  The terms of sale further provided that if the failure to obtain approval for the purchase of the shares was due to the purchaser's failure to cooperate in furnishing the required information, the down payment would be forfeited.

On June 22, 2022, the plaintiff submitted, by email, a cooperative transfer application package.  The following day, the defendant's transfer agent sent the plaintiff an email informing him that his application was “not deemed submitted” as he had failed to include the final pages of the application package, which consisted of authorizations allowing the defendant to obtain consumer reports about the plaintiff, and documents listed as “required attachments” in the application package, such as federal income tax returns and forms W–2 or 1099.  On July 7, 2022, the plaintiff sent the defendant an email stating:  “I am in the process of finishing my application.”  On July 19, 2022, the defendant's attorney sent the plaintiff a notice of default, advising that he was in default of the terms of sale as he had not submitted his application within five days after the auction date.  The plaintiff admitted that he still had not submitted the missing portions of the application at the time the notice of default was sent.

The plaintiff thereafter commenced this action to recover damages for breach of contract.  The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, for an award of attorneys' fees, and pursuant to 22 NYCRR 130–1.1 to impose sanctions against the plaintiff and/or his counsel.  By order dated November 29, 2023, the Supreme Court, inter alia, denied the motion.  The defendant then served an answer, which included a first counterclaim, seeking attorneys' fees under the terms of sale.

Subsequently, the plaintiff moved for summary judgment on the complaint, and the defendant cross-moved for summary judgment dismissing the complaint and on its first counterclaim.  By order dated October 9, 2024, the Supreme Court granted the plaintiff's motion and denied the defendant's cross-motion.  A judgment dated January 6, 2025, was entered upon the orders, in favor of the plaintiff and against the defendant in the total sum of $129,230.67.  The defendant appeals.

A party may move to dismiss a complaint pursuant to CPLR 3211(a)(1) where the movant has a defense founded on documentary evidence (see Bremner v. Bush, 244 A.D.3d 1044, 1046, 249 N.Y.S.3d 93).  “The evidence submitted in support of such motion must be documentary or the motion must be denied” (id. [internal quotation marks omitted];  see Silber Inv. Props., Ltd. v. BJG Islandia Realty, LLC, 236 A.D.3d 953, 954, 230 N.Y.S.3d 612).  Here, since the defense proffered by the defendant was based, in part, on emails, which do not qualify as documentary evidence, the Supreme Court properly concluded that the defendant was not entitled to dismissal of the complaint pursuant to CPLR 3211(a)(1) (see Bremner v. Bush, 244 A.D.3d at 1046, 249 N.Y.S.3d 93;  Bernstein v. Jacobson, 238 A.D.3d 1102, 1104, 235 N.Y.S.3d 161).

However, on its cross-motion for summary judgment, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint.  “To recover damages for breach of contract, a plaintiff must demonstrate 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” (Larsen v. Ciolli, 165 A.D.3d 1247, 1248, 86 N.Y.S.3d 149 [emphasis and internal quotation marks omitted] ).  “A court should interpret a contract ․ in accordance with its plain and ordinary meaning, and should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the[ir] expressions ․ so that their reasonable expectations will be realized” (249–251 Brighton Beach Ave., LLC v. 249 Brighton Corp., 217 A.D.3d 809, 811, 192 N.Y.S.3d 133 [internal quotation marks omitted];  Kirk v. Kirk, 207 A.D.3d 708, 711, 174 N.Y.S.3d 381 [citation and internal quotation marks omitted] ).

In the present case, the defendant demonstrated, prima facie, that the plaintiff defaulted on his obligation to submit a complete application package within five days of the auction sale, as required under the terms of sale in order to obtain the defendant's approval for the purchase (see 249–251 Brighton Beach Ave., LLC v. 249 Brighton Corp., 217 A.D.3d at 812, 192 N.Y.S.3d 133;  Kirk v. Kirk, 207 A.D.3d at 711, 174 N.Y.S.3d 381).  In opposition, the plaintiff failed to raise a triable issue of fact.  Contrary to the plaintiff's sole contention, his submission of an incomplete application package did not satisfy his obligation since “a fair and reasonable interpretation” of the terms of sale required the plaintiff to submit a complete application package (249–251 Brighton Beach Ave., LLC v. 249 Brighton Corp., 217 A.D.3d at 812, 192 N.Y.S.3d 133).  Accordingly, the Supreme Court should have granted that branch of the defendant's cross-motion which was for summary judgment dismissing the complaint and denied the plaintiff's motion for summary judgment on the complaint.

The Supreme Court also should have granted that branch of the defendant's cross-motion which was for summary judgment on its first counterclaim.  “Under the American rule, attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule” (Lang v. Zlotnick, 236 A.D.3d 635, 636, 229 N.Y.S.3d 470 [internal quotation marks omitted];  see Sage Sys., Inc. v. Liss, 39 N.Y.3d 27, 30, 177 N.Y.S.3d 525, 198 N.E.3d 768).  “Only a prevailing party is entitled to recover an attorney's fee, and to be considered a prevailing party, a party must be successful with respect to the central relief sought” (Lang v. Zlotnick, 236 A.D.3d at 636, 229 N.Y.S.3d 470 [internal quotation marks omitted] ).

Here, the terms of sale unambiguously provided that in the event the successful bidder commenced an action against the defendant as a result of the auction or sale of the shares, the successful bidder would “be responsible for the expense of legal counsel” for the defendant.  Since the defendant is the prevailing party in the action, it was entitled under the terms of sale to recover its reasonable attorneys' fees (see ENY Rockaway, LLC v. W 16 E. N.Y., LLC, 244 A.D.3d 689, 693, 247 N.Y.S.3d 411;  Lang v. Zlotnick, 236 A.D.3d at 636, 229 N.Y.S.3d 470).  Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to determine the amount of reasonable attorneys' fees to be awarded to the defendant and the entry of an appropriate amended judgment thereafter.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

IANNACCI, J.P., DOWLING, VENTURA and GOLIA, JJ., concur.