| Vecere v Estate of Arnold Berle |
| 2012 NY Slip Op 00203 [91 AD3d 637] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Jeanine Vecere, Appellant, v Estate of Arnold Berle,Deceased, by Norman Berle, as Administrator, et al., Respondents. |
—[*1] Norman M. Berle, PLLC, Scarsdale, N.Y., for respondents.
In an action to recover damages for breach of contract, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Smith, J.), dated April 25, 2011, which, in effect,converted the motion of the defendant Estate of Arnold Berle, by Norman Berle, asadministrator, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint into a motion forsummary judgment dismissing the complaint, granted that motion, and denied her cross motionfor summary judgment on the complaint.
Ordered that the order is reversed, on the law, with costs, the motion of the defendant Estateof Arnold Berle, by Norman Berle, as administrator, pursuant to CPLR 3211 (a) (1) and (7) todismiss the complaint is denied, and the plaintiff's cross motion for summary judgment on thecomplaint is granted.
Although the defendant Estate of Arnold Berle, by Norman Berle, as administrator(hereinafter the Estate), moved pursuant to CPLR 3211 (a) (1) and (7), the Supreme Court, ineffect, converted the motion into one for summary judgment pursuant to CPLR 3212 withoutproviding adequate notice pursuant to CPLR 3211 (c). This was error (see Mihlovan vGrozavu, 72 NY2d 506, 508 [1988]; Velez v Captain Luna's Mar., 74 AD3d 1191 [2010]; Garner v China Natural Gas, Inc., 71AD3d 825, 826 [2010]). Thus, this Court will apply, with respect to the Estate's motion, thestandards applicable to a motion to dismiss pursuant to CPLR 3211 (a) (1) and (7) (see Velezv Captain Luna's Mar., 74 AD3d at 1191; Garner v China Natural Gas, Inc., 71AD3d at 826).
Inasmuch as the parties' contract did not demonstrate that the Estate properly canceled thecontract according to its terms and, thus, did not " 'conclusively establish[ ] a defense to theasserted claims as a matter of law,' " the Estate was not entitled to dismissal of the complaintpursuant to CPLR 3211 (a) (1) (Ofman vKatz, 89 AD3d 909, 910 [2011], quoting Leon v Martinez, 84 NY2d 83, 88[1994]). Nor was it entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (7), sincethe complaint adequately pleaded a cause of action alleging breach of contract (see Wild Oaks, LLC v Joseph A. Beehan,Jr. Gen. Contr., Inc., 77 AD3d 924, 926 [2010]).[*2]
Additionally, the plaintiff established her entitlement tojudgment as a matter of law on the complaint by demonstrating that the Estate wrongfullycanceled a contract for the sale of real property, and retained the plaintiff's down payment.Specifically, the plaintiff demonstrated that, although she failed to obtain a loan commitmentletter by the prescribed "Loan Commitment Date," the Estate did not first provide "clear,unequivocal notice" to the plaintiff that time was of the essence and a reasonable time in whichto perform before it canceled the contract (ADC Orange, Inc. v Coyote Acres, Inc., 7 NY3d 484, 490 [2006][internal quotation marks omitted]; seeGarnot v LaDue, 45 AD3d 1080, 1082-1083 [2007]; Gupta v 211 St. Realty Corp., 16 AD3d 309, 311 [2005];Schatten v Briedis, 163 AD2d 379, 380 [1990]; see also Gammal v La Casita Milta, 5 AD3d 630 [2004]). Inopposition, the defendants failed to raise a triable issue of fact.
Accordingly, the Estate's motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecomplaint should have been denied, and the plaintiff's cross motion for summary judgment onthe complaint should have been granted. Skelos, J.P., Belen, Lott and Cohen, JJ., concur.