The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 were read on this motion to for Dismissal.DECISION AND ORDER This is an action for breach of contract brought by Akiyo Furuya against Michael Parry and Frank Barnett. Mr. Parry moves to dismiss the complaint pursuant to CPLR 306-b and 3211 [a] [8] for improper service and lack of personal jurisdiction, and pursuant to CPLR 3211 [a] [1] based on documentary evidence. Ms. Furuya cross moves to deem the proof of service of Mr. Parry, which was filed on November 30, 2018, as timely filed pursuant to CPLR 2001 and 2004. For the reasons set forth below, Mr. Parry’s motion to dismiss is denied, and Ms. Furuya’s cross motion is granted.BACKGROUNDReference is made to (x) a Contract of Sale — Condominium Unit (the Contract), dated November 2016, between Ms. Furuya and Mr. Parry, pursuant to which Ms. Furuya agreed to sell to Mr. Parry Unit 22F (the Unit) in the building known as the Revere Condominium located at 400 East 54th Street, New York, New York for the purchase price of $1,400,000 (NYSCEF Doc. No. 14 1), and (y) a Holdover Agreement, dated December 2016, between Ms. Furuya and Mr. Parry, pursuant to which Mr. Parry agreed that Ms. Furuya could remain as a tenant of the Unit for a term of two years (the Lease Term) expiring on December 31, 2018, in exchange for a reduction in the purchase price of $96,000 (i.e., such that the purchase price would be $1,304,000) (NYSCEF Doc. No. 15
1-8). The Holdover Agreement required, among other things, for Ms. Furuya to maintain the appliances, plumbing, heating, air conditioning systems, and electrical systems in the same condition as on closing inspection, subject to reasonable wear and tear (id. 5). Pursuant to the Contract, Mr. Parry remitted a down payment of $130,400 to Ms. Furuya’s counsel as escrow agent, where it was to be held pending closing of title (NYSCEF Doc. No. 14 3; Pressau aff 2). Mr. Barnett, Mr. Parry’s attorney, retained $10,000 from the proceeds of the sale at closing and held it in escrow to secure Ms. Furuya’s obligation to vacate the Unit at the end of the Lease Term (Pressau aff 2).Pursuant to the Holdover Agreement, Ms. Furuya could terminate her tenancy prior to the end of the Lease Term on 30-days’ written notice to Mr. Parry. In the event of any such earlier termination of the Lease Term, and subject to the conditions set forth in the Holdover Agreement, Ms. Furuya would receive a credit of $4,000 for each full month remaining in the Lease Term (NYSCEF Doc. No. 15 1 [a]). On March 26, 2018, Ms. Furuya served notice of her intention to terminate the tenancy and vacate the Unit on April 30, 2018 (Pressau aff 4). Ms. Furuya claims that inasmuch as there were eight months remaining in the Lease Term, she is entitled to a credit of $32,000 and the $10,000 deposit retained to ensure that she timely vacated the apartment, neither of which amounts she has received. Mr. Parry alleges that when he inspected the property on April 30, 2018, he discovered that the Unit was not in the condition that it was at closing, that it will cost approximately $24,750 to repair the Unit, and that Ms. Furuya is accordingly not entitled to either the deposit or the credit. To wit, the air conditioning systems, heating units, appliances, and light fixtures in the kitchen were not in working order, and the parquet floor was damaged and taped down to keep the tiles in place (Parry aff
