| Nehmadi v Davis |
| 2012 NY Slip Op 03988 [95 AD3d 1181] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Ben Nehmadi, Appellant-Respondent, v E. William Davis,Respondent-Appellant. |
—[*1] Adam Leitman Bailey, P.C., New York, N.Y. (Jeffrey R. Metz of counsel), forrespondent-appellant.
In an action, inter alia, for specific performance of a contract for the sale of real property, (1)the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court,Nassau County (McCarty III, J.), entered October 13, 2010, as denied his motion for leave toamend the complaint, among other things, to substitute a cause of action to recover damages forbreach of contract in lieu of the cause of action for specific performance, and appointed a refereeto hear and report on the items, if any, that must be resolved to achieve specific performance andcomplete the sale of the premises according to the terms of the contract of sale, and to thenadvise the Supreme Court when the items were resolved, so that the Supreme Court couldthereafter direct the closing of the sale of the premises, and the defendant cross-appeals, aslimited by his notice of cross appeal and brief, from stated portions of the same order enteredOctober 13, 2010, which, inter alia, denied those branches of his motion which were forsummary judgment dismissing the cause of action for specific performance and on hiscounterclaim declaring that the plaintiff is in default under the contract of sale and that he isentitled to retain the down payment, and (2) the plaintiff appeals from so much of an order of thesame court entered December 17, 2010, as denied his motion to reject the referee's report andgranted the defendant's cross motion to confirm the referee's report, to direct the parties tocomplete the closing of the sale of the premises within 30 days of the date of the order, and tovacate the notice of pendency filed against the subject property.
Ordered that on the Court's own motion, the plaintiff's notice of appeal from so much of theorder entered October 13, 2010, as appointed a referee to hear and report on the items, if any, thatmust be resolved to achieve specific performance and complete the sale of the premisesaccording to the terms of the contract of sale, and to then advise the Supreme Court when theitems were resolved, so that the Supreme Court could thereafter direct the closing of the sale ofthe premises, is deemed to be an application for leave to appeal from that portion of the order,and leave to appeal is granted (see CPLR 5701 [c]; Civic Assn. at Roslyn CountryClub v Levitt & Sons, 143 AD2d 385 [1988]); and it is further,
Ordered that the order entered October 13, 2010, is affirmed insofar as appealed andcross-appealed from, without costs or disbursements; and it is further,[*2]
Ordered that the order entered December 17, 2010, isaffirmed insofar as appealed from, without costs or disbursements.
This case involves a contract to sell real property located in Old Westbury, owned by thedefendant (hereinafter the seller), to the plaintiff (hereinafter the buyer). The facts of the case areset forth in a decision and order on a prior appeal (see Nehmadi v Davis, 63 AD3d 1125 [2009]), in which this Courtreinstated the buyer's cause of action for specific performance upon a determination that theseller, on his previous summary judgment motion, failed to demonstrate that he effectively set atime-of-the-essence closing date for December 13, 2007.
While the prior appeal was pending, the seller moved to cancel the notice of pendency filedin connection with the premises based on the Supreme Court's dismissal of the cause of actionfor specific performance, and the buyer cross-moved to direct the seller to return the downpayment. By order entered June 4, 2009, the Supreme Court granted the seller's motion, anddirected the seller to submit, for settlement and signature, a proposed order cancelling the noticeof pendency, with notice of settlement. The Supreme Court also granted the buyer's cross motion,and directed the seller to return the down payment within 30 days. Almost one month later, onJune 30, 2009, this Court issued its decision and order determining the prior appeal andreinstating the specific performance cause of action. At that time, however, the Supreme Court'sorder entered June 4, 2009, was in effect, and remained in effect until the Supreme Court issuedan order dated August 28, 2009, granting the seller's motion to vacate so much of the orderentered June 4, 2009, as directed him to return the down payment.
In the meantime, approximately 10 days after this Court issued its decision and order datedJune 30, 2009, the seller's attorney wrote to the buyer, by letter dated July 9, 2009, advising himthat the closing was now scheduled for August 14, 2009, which the seller designated as "the'Time of the Essence Closing Date,' " and that the buyer risked default by not appearing at theclosing. Only the seller's attorney appeared at the scheduled August 14, 2009, closing.
In February 2010 the Supreme Court denied the seller's motion to direct the Nassau CountyClerk to cancel the notice of pendency. That motion was denied, however, without prejudice tothe seller's "right to move for summary judgment dismissing [the buyer's] cause of action forspecific performance upon a showing of a properly noticed time of the essence closing, that [theseller] was ready, willing and able to close and that [the buyer] was in default."
In March 2010 the seller moved, inter alia, for summary judgment dismissing the cause ofaction for specific performance and on his counterclaim declaring that the buyer was in defaultand that he was entitled to retain the down payment. The buyer separately moved for leave toamend the complaint, among other things, to substitute a cause of action to recover damages forbreach of contract in lieu of the cause of action for specific performance. Both motions includeda general prayer for relief and, in opposing the buyer's motion to amend, the seller stated that ifthe Supreme Court denied his summary judgment motion, then he was ready to immediatelyclose on the property pursuant to the contract of sale.
In an order entered October 13, 2010, the Supreme Court denied the parties' motions andappointed a referee to hear and report on "what, if any, items must be resolved to achieve specificperformance and complete the sale of the Premises by the defendant to plaintiff according to theterms of the contract of sale between the parties . . . . [The referee] shall then reportto this Court when such items have been resolved and the Court shall thereafter order the closingof the sale of the Premises." Following submissions by the parties to the referee and an inspectionof the premises, the referee reported to the Supreme Court that there were no outstanding mattersthat needed to be resolved to achieve specific performance and complete the sale of the premises.In an order entered December 17, 2010, the Supreme Court denied the buyer's motion to rejectthe referee's report, granted the seller's cross motion to confirm the report, directed the parties tocomplete the closing within 30 days of the date of the order, and vacated the notice of pendencyfiled against the subject property.[*3]
The buyer now argues that the Supreme Court waswithout authority to appoint the referee, as neither party requested such relief in their respectivemotions. The buyer's argument is without merit.
"The court may grant relief, pursuant to a general prayer contained in the notice of motion ororder to show cause, other than that specifically asked for, to such extent as is warranted by thefacts plainly appearing [in] the papers on both sides. It may do so if the relief granted is not toodramatically unlike the relief sought, and if the proof offered supports it and the court is satisfiedthat no one has been prejudiced by the formal omission to demand it specifically (Siegel, PracticeCommentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2214:5 at 84). Whether togrant such relief is discretionary with the court" (HCE Assoc. v 3000 Watermill Lane RealtyCorp., 173 AD2d 774, 774-775 [1991] [citations omitted]; see Tirado v Miller, 75 AD3d 153[2010]).
Here, the relief granted was not unrelated to the relief actually sought (cf. Condon vCondon, 53 AD2d 622 [1976]), particularly where the seller's opposition to the buyer'smotion included a request that, should the seller's summary judgment motion be denied, the court"set[ ] an immediate time and place for closing." Moreover, the buyer was not prejudiced by theformal omission to demand the appointment of a referee specifically (see HCE Assoc. v 3000Watermill Lane Realty Corp., 173 AD2d at 774-775; see also Mastandrea v Pineiro,190 AD2d 841 [1993]; cf. Goldstein v Haberman, 183 AD2d 807 [1992]).
Contrary to the buyer's contention, the Supreme Court did not improvidently exercise itsdiscretion in denying his motion for leave to amend the complaint. The buyer, inter alia, offeredno reasonable excuse for the 32-month delay in moving for leave to amend the complaint, despitehis admission that the facts supporting the proposed cause of action to recover the down paymentfor altering the premises, based on a theory of breach of contract, were known to him at the timehe served the original complaint (seeYoung v A. Holly Patterson Geriatric Ctr., 17 AD3d 667 [2005]; Castagne vBarouh, 249 AD2d 257 [1998]).
The seller contends that the Supreme Court erred in denying those branches of his motionwhich were for summary judgment dismissing the cause of action for specific performance andon his counterclaim. We disagree.
While the seller corrected the defects that were the subject of the prior appeal, in order toestablish his prima facie entitlement to judgment as a matter of law on the motion, the seller hadto establish that he was ready, willing, and able to close on the August 14, 2009, closing date(see Nehmadi v Davis, 63 AD3d at 1128), and, as the party moving for summaryjudgment, he had the burden of demonstrating " 'the absence of a triable issue of fact regardingwhether the plaintiff was ready, willing and able to close' " (Iannucci v 70 Washington Partners, LLC, 51 AD3d 869, 872[2008], quoting Knopff v Johnson,29 AD3d 741, 742 [2006]).
Here, the seller's moving papers made no reference to the Supreme Court's order entered June4, 2009, directing him to return the buyer's down payment. "Even if [the seller] believed that theprior order[ ] [was] erroneous, [he] was obligated, in the absence of a stay, to obey the court'smandate, until the order[ ] [was] vacated or reversed" (Kampf v Worth, 108 AD2d 841,842 [1985]; see Wolstencroft v Sassower, 212 AD2d 598, 599 [1995]). As noted above,that order was not vacated until two weeks after the scheduled closing date of August 14, 2009.Inasmuch as the seller, at the time of the closing, had failed to comply with the outstandingSupreme Court order or have it vacated, he did not demonstrate a prima facie entitlement tojudgment as a matter of law. Therefore, the Supreme Court properly denied those branches of theseller's motion which were for summary judgment dismissing the cause of action for specificperformance and on his counterclaim, regardless of the sufficiency of the opposing papers(see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Since the Referee's findings are supported by substantial evidence in the record, and theReferee clearly defined the issues and resolved matters of credibility, the report was properlyconfirmed (see Matter of Lipsky v Koplen, 282 AD2d 462, 463 [2001]).[*4]
The parties' remaining contentions are without merit.Angiolillo, J.P., Dickerson, Austin and Cohen, JJ., concur.