ADDITIONAL CASESHarbe Brachot, LLC, Plaintiff v. Shirley Moss as Administrator d.b.n. of the Estate of Fernande Arty Herivaux, DefendantThe following papers were considered in this motion:Papers: Numbered:Notice of Motion to Dismiss and Affirmation in Support, with Exhibits 1, 2Affidavits and Affirmation in Opposition, with Exhibits 3, 4, 5Reply Affirmation 6Notice of Motion, Affidavit in Support with Exhibits 7, 8Affirmation and Affidavit in Opposition, with Exhibits 9, 10Reply Affirmation 11DECISION and ORDER By verified complaint dated December 7, 2017, Harbe Brachot, LLC (the company), commenced an action in New York State Supreme Court, Kings County (the Supreme Court action), against Shirley Moss (Shirley), as administrator d.b.n. of the estate of Fernande Arty a/k/a Fernande Arty Herivaux (the decedent), in which the company seeks specific performance of a contract dated April 6, 2016, for the sale of certain real property located at 310 Highland Boulevard, Brooklyn, New York (the real property) which is an asset of the decedent’s estate. Shirley moved, inter alia, to dismiss the Supreme Court action or, in the alternative, to transfer it to Surrogate’s Court. By order of the Supreme Court dated April 4, 2018, the Supreme Court action with its pending motion was transferred to this court. Shirley seeks to dismiss the action pursuant to CPLR 3211(a)(1) and (a)(7).BackgroundThe decedent died, intestate, on December 3, 1998, survived by three adult children, namely Shirley, Herman Moss (Herman), and Edgard Moss (Edgard). Letters of administration d.b.n. were issued to Shirley on August 3, 2005.1 The decedent’s primary assets consisted of three parcels of real property, two of which have been sold and the third which is the subject of the underlying action. For the past thirteen years, the parties have been mired in conflict centering in large part upon the terms of sale of this final piece of real property. The parties have engaged in vigorous motion practice focused on the efforts by Herman and his wife, Monique FanFan (Monique) to purchase the real property, and they have executed a series of stipulations, beginning with a May 11, 2006 stipulation (the 2006 stipulation) resolving Shirley’s attempt to evict Herman and Monique from their residence at the real property. Each subsequent stipulation, executed in 2008, 2010 and 2013, respectively, detailed the evolving agreements of the parties to the mechanics of assessing the value of the real property, establishing the terms of exercise of Herman’s, and later Monique’s, right of first refusal, and, in the event of the failure of Herman or Monique to purchase the real property in accordance with the stated parameters, the procedure for offering the real property for sale on the open market.The Supreme Court Action and Instant Motion to DismissThe company commenced an action for specific performance, contending that it executed a written contract of sale with Shirley on April 6, 2018 (the contract). The contract provides for a purchase price of $499,500.00, and appears to be signed by Shirley as administrator of the decedent’s estate. Shirley was represented by counsel at the time of the contract’s execution. Pursuant to the terms of the contract, the company paid $10,000.00 on April 5, 2016, by check made payable to Shirley’s attorney as a down payment. The contract further provides that a closing shall take place thirty days from notice to the company that the real property is vacant. The company avers that, despite its efforts to secure a closing date, including appearing in this court as a non-party, Shirley has never provided the notice of vacancy, even upon eviction of Monique. The company asserts that Shirley repudiated the contract by refusing to schedule a closing date and proceeding with the sale.Shirley now moves to dismiss the action based upon documentary evidence pursuant to CPLR 3211(a)(1) and for failure to state a claim pursuant to CPLR 3211(a)(7). The documentary evidence proffered by Shirley is a copy of the 2006 stipulation executed by Shirley and her siblings, wherein the parties agreed, inter alia, to subject all contracts of sale of the real property and other estate real property to the approval of Surrogate’s Court.2 Shirley asserts that as the contract with the company has not been submitted to this court for approval, no action for specific performance may be maintained since “the obtainment of Surrogate’s Court approval is a precondition before any action for specific performance may be commenced.” Shirley further avers that the company fails to state a claim since its action for specific performance was commenced on a date before the alleged contract provided for a closing.3In opposition, the company contends that Shirley’s assertion regarding the purported limitations of the 2006 stipulation is disingenuous. It asserts that in the intervening decade between the 2006 stipulation and execution of the contract, the 2006 stipulation was superseded in a number of subsequent proceedings by stipulations which specifically addressed the disposition of the real property. The company asserts these later proceedings culminated in the execution of a stipulation between the parties on December 3, 2013 (the 2013 stipulation), pursuant to which the parties agreed that Shirley had the authority to sell the real property on the open market. The company notes that Shirley was directed to comply with the terms of the 2013 stipulation by order of this court dated November 3, 2014 (the 2014 order), and further that by decision and order dated July 12, 2017, the court denied Monique’s efforts to extend the time available for her to purchase the real property in accordance with the 2013 stipulations, and specifically stated that Shirley was permitted to sell the real property. The company asserts that it has acted in good faith, and that it has neither requested nor received return of its down payment.DiscussionOn her motion made pursuant to CPLR 3211(a)(1), Shirley is required to show that the documentary evidence proffered in support of her motion “utterly refutes plaintiff’s factual allegations conclusively establishing a defense as a matter of law.” Mahmood v. County of Suffolk, 166 A.D.3d 751 (2d Dep’t 2018) (citations omitted). With respect to Shirley’s motion made pursuant to CPLR 3211(a)(7), the court is required to accept the complaint’s factual allegations as true, according to the company the benefit of every possible favorable inference, and determining only “whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 94 N.Y.2d 83, 84 (1994). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss.” EBC I, Inc., v. Goldman Sachs & Co., 5 N.Y.3d 11, 19 (2008). “[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate.” Guggenheimer v. Ginzberg, 43 NY2d 268, 275 (1977).With respect to her motion to dismiss based on documentary evidence, Shirley proffers a copy of the 2006 stipulation, entered into between the parties to resolve an action by Shirley to evict Herman and Monique from the real property in order to proceed with the sale thereof. The 2006 stipulation provides, inter alia, for the listing of all of the decedent’s real properties with a broker, and for the opportunity for Herman to exercise a right of first refusal to purchase the instant real property. In addition, the 2006 stipulation provides that “[a]ll contracts of sale are subject to the approval of the [court],” and that upon receipt of an executed contract of sale, Shirley would file a petition seeking leave to consummate the sale. Shirley asserts that the 2006 stipulation has been neither vacated nor overturned, and thus the company’s statement in its complaint that Shirley is under no impediment to transfer title is untrue. She avers that receipt of leave of the court is a precondition to be satisfied before commencement of an action for specific performance. In response, the company asserts that the 2006 stipulation has been effectively superseded by subsequent stipulations which established the parties’ agreed procedures for sale of the real property, none of which require advance approval by this court.The court notes that the 2006 stipulation was executed at a time when the decedent’s estate consists primarily of three parcels of real property, two of which were sold thereafter. The vast bulk of the proceedings in this estate for the past decade have concerned the efforts of Herman and Monique to purchase the real property. The parties executed a series of stipulations over a five-year period, on November 13, 2008, October 27, 2010, and December 3, 2013 (the 2013 stipulation). Each stipulation established procedures for Herman and then Monique to exercise their right of first refusal to purchase of the real property, and multiple proceedings were commenced by the parties to enforce compliance with each of the stipulations. Each such proceeding was concluded by execution of a further stipulation, and while the time frames and other requirements for the exercise by Herman and/or Monique of their right of first refusal were altered in each succeeding stipulation, none of the stipulations contained any restriction upon Shirley’s right to sell the real property in the event Herman and Monique failed to comply with these requirements.Indeed, by decision and order dated November 3, 2014 (the 2014 order), this court ordered Shirley to comply with the terms of the 2013 stipulation, including a direction that she take “all necessary steps to effect the sale of the [real property]” in accordance therewith. Further, when Monique moved in 2016 to compel Shirley to comply with the 2013 stipulation and the 2014 order, this court issued a decision and order, dated July 12, 2017 (the 2017 order), stating that “ enough is enough” and specifically directing that “Shirley is permitted to place the [real property] on the open market for sale.”The court finds Shirley’s assertion that the contract must be submitted for the court’s approval before an action for specific performance will lie to be disingenuous. The past thirteen years of exhaustive litigation, including commencement of actions in Supreme Court, have revolved entirely around the necessity for sale of this final parcel of real estate and distribution of its proceeds. The court notes that the letters of administration d.b.n. currently issued to Shirley do not contain restrictions requiring this court’s approval of a contract of sale for the final parcel of real property. The 2017 order imposes no restriction on Shirley’s ability to enter into a contract, and indeed quite explicitly states that final administration of the decedent’s estate has lingered far too long. The terms of the 2006 stipulation, which was entered into thirteen years ago, shortly after issuance of letters to Shirley and when all of the decedent’s real properties remained to be sold, have long been superseded by numerous stipulations which clearly establish the procedures for sale, whether to Herman, Monique or a third party. Accordingly, Shirley’s motion to dismiss the action on the grounds of documentary evidence pursuant to CPLR 3211(a)(1) is denied.With respect to Shirley’s motion to dismiss based on the alleged failure of the company to state a cause of action, “the elements of a cause of action for specific performance are that the plaintiff substantially performed its contractual obligations and was [ready,] willing and able to perform its remaining obligations, that defendant was able to convey the property, and that there was no adequate remedy at law.” Finkelstein v. Lynda, 166 A.D.3d 948, 949 (2d Dep’t 2018) (citing EMF Gen. Contr. Corp. v. Bisbee, 6 AD3d 45, 51 [1st Dept 2005]).Shirley asserts that the contract provides that the “[c]losing shall take place at the office of [Shirley's] attorney or lending institution at 10:00 o’clock on or about 30 days from notice to buyer that premises are vacant.” Shirley contends that, since the complaint fails to allege that the premises are vacant or that notice of vacancy has been given to the company, the company has failed to set forth facts which would, if proved, establish its entitlement to specific performance at the time of the commencement of the action. Shirley asserts that if a closing cannot be set, the contract cannot be performed.In response, the company submits an affidavit from Joseph Gusmarino (Gusmarino), the sole member of the company, in which he asserts that i) he tendered a down payment on purchase of the real property to Shirley, ii) he consented to release of a portion of the down payment for use by Shirley to enable her to proceed with Monique’s eviction, and iii) he was advised by counsel to Monique that she has vacated the premises.Shirley asserts that before an action for specific performance may be commenced, a condition precedent to closing is required to be satisfied, that is, notice given by Shirley to the company that the real property is vacant.4 This assertion is unavailing in support of a motion to dismiss for failure to state a cause of action, as it operates essentially as a defense to such action. The court’s role is not to determine the merits of the company’s pleading, but rather to “afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord [the company] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Litvinoff v. Wright, 150 A.D.3d 714, 715 (2d Dep’t 2017) The likelihood that the company will be able to prove its allegations is irrelevant, Id. The company has alleged the existence of an executed contract of sale, the tender and acceptance of a down payment, and its willingness and ability to proceed with effectuating the sale of the real property. Accordingly, Shirley’s motion to dismiss the company’s complaint for failure to state a cause of action is denied, and it isORDERED, that Shirley Moss shall serve and file a verified answer, if any, to the instant complaint for specific performance on or before thirty days from service of this decision with notice of entry.This constitutes the decision and order of the court.Date: March 14, 2019Brooklyn, New York
