| Alter v Levine |
| 2008 NY Slip Op 10568 [57 AD3d 923] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Daniel S. Alter, Appellant, v Richard H. Levine et al.,Respondents. |
—[*1] Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Helmut Borchert andMark J. Krueger of counsel), for respondents.
In an action to recover damages for breach of contract and for a judgment declaring that theplaintiff is entitled to retain the defendants' down payment in the sum of $62,000, the plaintiffappeals from so much of an order of the Supreme Court, Westchester County (Nicolai, J.),entered March 7, 2008, as granted that branch of the defendants' motion which was for summaryjudgment on their first counterclaim directing the return of their down payment, and denied hiscross motion, inter alia, for summary judgment and to impose a sanction upon the defendants forallegedly frivolous conduct.
Ordered that the order is affirmed insofar as appealed from, with costs.
Pursuant to the terms of the subject contract, in the event the cooperative board (hereinafterthe board) refused to approve the defendants' purchase of the apartment in question, thedefendants were entitled to the return of their escrowed down payment, unless the board's refusalwas due to the defendants' bad faith. The complaint, which, among other things, seeks ajudgment declaring that the plaintiff is entitled to retain the defendants' down payment, allegesthat "the defendants in bad faith submitted data to the [board] which data and statementscontained misrepresentations, were falsehoods, or were otherwise unsubstantiated and as a resultof said bad faith submission by the defendants, the [board] refused to consent to the sale of theApartment."
Upon the defendants' prima facie showing of entitlement to judgment as a matter of law, theplaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]) as towhether the board's refusal to approve the [*2]defendants'purchase of the apartment was attributable to the defendants' bad faith. Rather, the purportedfactual issues suggested by the plaintiff were no more than " ' [b]ald conclusory assertions,[which] even if believable, [were] not enough' to defeat a motion for summary judgment"(S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 342 [1974], quoting Ehrlichv American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]; see ParisiEnters. Inc. Profit Sharing Trust v Settimo, 198 AD2d 272, 273 [1993]; Mlcoch v Smith,173 AD2d 443, 444 [1991]; cf. Moustakas v Noble, 259 AD2d 602, 603 [1999]).
In the absence of any evidence that the board's rejection of the defendants' application wasdue to bad faith on the part of the defendants, the Supreme Court properly found that thedefendants were entitled to the return of their down payment pursuant to the parties' contract.
As a second ground for declaring that the plaintiff was entitled to retain the down payment,the complaint alleges that a letter sent by the defendants' attorney to the plaintiff's attorney onMay 16, 2006 constituted an anticipatory repudiation of the contract in that it sought to changecertain carrying-cost and time-of-the-essence provisions. The plaintiff contends that,notwithstanding the board's ultimate rejection of the defendants' application, he is entitled toretain the down payment because the defendants announced their intention to breach the contractbefore the contract was rendered impossible to perform.
The Supreme Court correctly rejected this argument. Inasmuch as the board's refusal toapprove the defendants' application rendered performance of the contract an impossibility, theissue of whether the defendants anticipatorily repudiated the contract is academic. "'Impossibility on the part of a promisor occurring after he has committed a breach does notordinarily discharge him, but it will do so if the breach consists merely of an anticipatoryrepudiation' " (Millgard Corp. v E.E. Cruz/Nab/Fronier-Kemper, 2004 WL 1900359, *7,2004 US Dist LEXIS 16882, *20 [SD NY 2004], quoting Restatement [First] of Contracts§ 457, Comment d). Accordingly, the plaintiff is not entitled to retain the downpayment, even if the defendants had anticipatorily repudiated the contract.
The Supreme Court properly denied that branch of the plaintiff's cross motion which was toimpose a sanction upon the defendants for allegedly frivolous conduct in refusing to withdrawone of their counterclaims (see Winski v Kane, 33 AD3d 697 [2006]). Skelos, J.P.,Santucci, McCarthy and Dickerson, JJ., concur.