| Java Enters., Inc. v Loeb, Block & Partners LLP |
| 2008 NY Slip Op 01825 [48 AD3d 383] |
| February 28, 2008 |
| Appellate Division, First Department |
| Java Enterprises, Inc., Respondent, v Loeb, Block &Partners LLP, Defendant, and Gideon Gartner et al., Appellants. |
—[*1] Becker, Glynn, Melamed & Muffly, LLP, New York City (Jordan E. Stern of counsel, forrespondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 21, 2007,which granted plaintiff's motion for summary judgment declaring that defendants were in defaulton a real estate contract, dismissing defendants' counterclaims, and directing the escrow agent topay to plaintiff the down payment made by defendants on account of the contract, together withinterest, unanimously affirmed, with costs.
Plaintiff demonstrated that the contractual conditions as to the state of the subject apartmentwere met on the date of the closing. Upon defendants' cancellation of the October 7, 2004closing, plaintiff's counsel advised defendants that the apartment had been inspected and found tobe broom clean and in good condition, as it had been on the date of the contract of sale.Defendants did not respond to plaintiff's request that they itemize any alleged damage to theapartment. Indeed, defendant Gideon Gartner acknowledged in an affidavit submitted inopposition to plaintiff's motion that when he and his wife signed the contract in August 2004 theyhad not seen the inside of the apartment for at least eight months, and in a December 14, 2004facsimile, defendants conceded that they had not inspected the apartment in detail until the dateof the closing. The architects' report does not discuss how the condition of the apartment mayhave changed between the date of contract and the date of closing; it addresses areas of neededimprovement that would have been evident on the date of the contract. Lacking any evidence ofthe state of the apartment on the date of the contract, defendants failed to raise a triable issuewhether the condition of the apartment had changed by the time of the closing.
Furthermore, in a November 17, 2004 e-mail, defendants admitted that the reason they wouldnot purchase the apartment was the high cost of renovations, together with their recent financialtroubles; they made no mention whatsoever of damage to the apartment. Indeed, defendantsconceded that the failure to close rested with them and that as a consequence they were forfeitingtheir down payment. Contrary to defendants' contention, the November 17, 2004 e-mail is notinadmissible under CPLR 4547, which applies only to offers "to compromise a claim [*2]which is disputed"; defendants admitted liability. In any event, inthe December 14, 2004 facsimile, defendants similarly admitted that they cancelled the closingbecause of the expense of remodeling, and they do not claim that the December 14, 2004facsimile is inadmissible under CPLR 4547.
Defendants are not absolved from liability because plaintiff subsequently sold the apartmentto a third party for more than they had agreed to pay for it (see Johnson v Werner, 63AD2d 422, 424 [1978]). Concur—Mazzarelli, J.P., Andrias, Saxe, Gonzalez and Sweeny,JJ. [See 2007 NY Slip Op 32598(U).]