Briar MG v. Li

MEMORANDUM DECISION This is a motion by plaintiffs Briar MG, LLC (Briar MG), and SG Queens LLC (SG Queens), and D’Agostino, Levine Landesman, Lederman, Rivera & Sampson, LLP (the D’Agostino firm), as Escrow Agent, for a default judgment against defendant Wei Jun Li (defendant), declaring that the deposit amount of $655,000.00, paid by defendant in connection with a written agreement dated September 20,2019, for a sale of real property located at 138-23 Queens Boulevard, in the County of Queens, to Briar MG and SG Queens, should be released to Briar MG and SG Queens as liquidated damages, and to sever the issue of attorneys’ fees; by separate notice of motion by Briar MG, SG Queens, and the D’Agostino firm, pursuant to CPLR 93212, for summary judgment on their causes of action, for the release of defendant’s deposit to Briar MG and SG Queens as liquidated damages pursuant to the terms of the parties’ agreement, to strike or dismiss defendant’s affirmative defenses and counterclaims, and for attorneys’ fees to be determined at a fee inquest; by separate notice of motion by defendant pursuant to CPLR §3212, for summary judgment dismissing the complaint, for summary judgment on his counterclaims, and to compel the return of the $655,000.00, deposit, with interest thereon; by notice of cross motion by defendant pursuant to CPLR §3211 (a)(8), to dismiss the complaint for lack of jurisdiction, or in the alternative, pursuant to CPLR §§317, 3012 (d), and 5015 (a)(1), to vacate any default that may be found to exist, to extend defendant’s time to answer the complaint, and to compel Briar MG, SG Queens, and the D’Agostino firm to accept defendant’s answer, and to disqualify the D’Agostino firm from representing Briar MG and SG Queens in this action pursuant to rule 3.7 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0), based upon the likelihood that the D’Agostino firm shall be a witness on a significant issue of fact; and by separate notice of cross motion by Briar MG, SG Queens, and the D’Agostino firm pursuant to CPLR §3212, for summary judgment on the causes of action in the complaint, for the release of defendant’s deposit to Briar MG and SG Queens as liquidated damages pursuant to the terms of the parties’ agreement, to strike or dismiss defendant’s affirmative defenses and counter claims, and for attorneys’ fees to be determined at a fee inquest. It is ordered that the motions and cross motions are determined as follows: This is an action for declaratory judgment and legal fees, costs and disbursements, seeking damages arising out of a written agreement between Briar MG and SG Queens, and defendant. Briar MG, SG Queens, and the D’Agostino firm have alleged that on or about September 20, 2019, Briar MG and SG Queens, with the D’Agostino firm, acting as the escrow agent, entered into a written agreement with defendant for the sale of real property located at located at 138-23 Queens Boulevard, in the County of Queens, whereby defendant agreed to purchase the subject real property for a purchase price of $13,100,000.00. Briar MG, SG Queens, and the D’Agostino firm have further alleged that as part of the agreement, defendant paid to the D’Agostino firm, as the escrow agent, a deposit in the amount of $655,000.00, and that the agreement expressly provided that January 31, 2020, was a time of the essence closing date. Briar MG, SG Queens, and the D’Agostino firm have alleged that while Briar MG and SG Queens appeared at the closing and were ready, willing, and able to close on that date, defendant failed to appear. Briar MG, SG Queens, and the D’Agostino firm have further alleged that on January 31, 2020, as a result of his failure to appear, defendant breached the written agreement because he failed to, among other things, pay the balance of the purchase price for the subject real property pursuant to the terms of the agreement. The court will first address the branch of defendant’s cross motion, made pursuant to CPLR §3211(a)(8). Defendant has argued that he was not properly served with the summons and complaint. CPLR §3211 (a)(8), provides for dismissal of the complaint on the ground that “the court has not jurisdiction of the person of the defendant.” “‘When a defendant objects to the court’s exercise of personal jurisdiction, the ultimate burden of proof rests upon the plaintiff” (Sutton v. Houllou, 191 AD3d 1031 [2d Dept 2021], quoting Lowy v. Chalkable, LLC, 186 AD3d 590, 591 [2d Dept 2020]). “To defeat a CPLR §3211(a)(8) motion to dismiss a complaint, the plaintiff, however, need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the court” (Piccoli v. Cerra, Inc., 174 AD3d 754, 755 [2d Dept 2019]; see Sutton v. Houllou, 191 AD3d at 1031; Shatara v. Ephraim, 137 AD3d 1248, 1249 [2d Dept 2016]; Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 AD3d 977, 978 [2d Dept 2011]). The record before the court contains, among other things, copies of the pleadings, a copy of the affidavit of non-party Laurance Knox, a process server, dated August 18, 2020, and the affidavit of non-party Alex Zambrano, a process server, dated August 18, 2020, both of which demonstrated that the summons and complaint were re-served upon defendant. In a stipulation dated September 9, 2020, defendant acknowledged re-service of the complaint effective August 31, 2020, and agreed not to contest such service of process. Therefore, in light of the above, defendant is not entitled to the relief sought on this branch of his cross motion. As alternative relief on his cross motion, defendant has sought, pursuant to CPLR SS 317, 3012 (d), and 5015 (a)(1), to vacate any default that may be found to exist, to extend defendant’s time to answer the complaint, and to compel Briar MG, SG Queens, and the D’Agostino firm to accept defendant’s answer. As a consequence of the terms of the parties’ stipulation dated September 9, 2020, contained in the record, in which Briar MG, SG Queens, and the D’Agostino firm agreed to accept defendant’s answer, these alternative branches of defendant’s cross motion have been rendered moot. While Briar MG, SG Queens, and the D’Agostino firm have moved for a default judgment against defendant, declaring that the deposit amount of $655,000.00, should be released to Briar MG and SG Queens as liquidated damages, and have also moved to sever the issue of attorneys’ fees, pursuant to the stipulation dated September 9, 2020, Briar MG, SG Queens, and the D’Agostino firm have withdrawn this motion and are, thus, not entitled to such relief. As a result of the stipulation dated September 9, 2020, the only the branch of defendant’s cross motion that remains to be determined is the branch seeking to disqualify the D’Agostino firm from representing Briar MG and SG Queens in this action pursuant to rule 3.7 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0). The court will now address that branch of defendant’s cross motion. It is well established that “[a] party’s entitlement to be represented by counsel of his or her choice is a valued right which should not be abridged absent a clear showing that disqualification is warranted” (Empire Med. Services of Long Is., P.C. v. Sharma, 189 AD3d 1176, 1177 [2d Dept 2020][internal quotes omitted]). “The advocate-witness rules contained in the Rules of Professional Conduct (22 NYCRR 1200.0) provide guidance, but are not binding authority, for the courts in determining whether a party’s attorney should be disqualified during litigation” (Greenberg v. Grace Plaza Nursing & Rehabilitation Ctr., 174 AD3d 510, 511 [2d Dept 2019]). In particular, rule 3.7 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0), entitled “Lawyer as Witness,” provides the following: “(a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless: (1) the testimony relates solely to an uncontested issue; (2) the testimony relates solely to the nature and value of legal services rendered in the matter; (3) disqualification of the lawyer would work substantial hardship on the client; (4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or (5) the testimony is authorized by the tribunal.” In support of this branch of his cross motion, defendant has argued that the D’Agostino firm is a necessary witness whose testimony is essential to resolution of this action. “The disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court” (Lauder v. Goldhamer, 122 AD3d 908,910 [2d Dept 2014]; see Greenberg v. Grace Plaza Nursing & Rehabilitation Ctr., 174 AD3d 510,510 [2d Dept 2019]; Trimarco v. Data Treasury Corp., 91 AD3d 756, 756 [2d Dept 2012]). “In order to disqualify counsel on the ground that he or she may be called as a witness, the party moving for disqualification has the burden of demonstrating that (1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party” (Empire Med. Services of Long Is., Pc. v. Sharma, 189 AD3d at 1177 [internal quotes omitted]; see Homar v. American Home Mtge. Acceptance, Inc., 119 AD3d 901 [2d Dept 2014]; Trimarco v. Data Treasury Corp., 91 AD3d at 757). In addition to the evidence set forth above, the record also contains, among other things, a copy of an Agreement of Purchase and Sale dated September 20,2019 (the agreement), which provides, in “Exhibit C,” entitled “Escrow Provisions,” the following: “Escrow Agent agrees to hold in escrow the Deposit delivered to Escrow Agent pursuant to this Agreement upon the following terms and conditions:…(k) Escrow Agent or any member of its firm shall be permitted to act as counsel for Seller (assuming Seller’s counsel is acting as Escrow Agent) in any dispute as to the disbursement of the Deposit or any other dispute between Seller and Purchaser whether or not Escrow Agent is in possession of the Deposit and continues to act as Escrow Agent.” In addition the fact that defendant expressly agreed to have the D’Agostino firm represent Briar MG and SG Queens act as their counsel “in any dispute as to the disbursement of the Deposit or any other dispute between Seller and Purchaser…” defendant has failed to satisfy his burden on this branch of his cross motion. Defendant has failed to sufficiently demonstrate through admissible evidence that the D’Agostino firm’s employees’ testimony would be necessary to the instant litigation and that such testimony would be prejudicial to Briar MG and SG Queens (see Empire Med. Services of Long Is., P.C. v. Sharma, 189 AD3d at 1178; Nelson v. Roth, 69 AD3d 912,913 [2d Dept 2010]; see also Corrieri v. Schwartz & Fang, P.C, 106 AD3d 644,645 [1st Dept 2013]). Furthermore, defendant has failed to demonstrate that any such testimony would fall outside of the first and second exceptions set forth in rule 3.7 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0). Therefore, defendant is not entitled to the relief sought on this branch of his cross motion seeking to disqualify the D’Agostino firm from representing Briar MG and SG Queens in this action. Next, the court notes that Briar MG, SG Queens, and the D’Agostino firm have both moved and cross-moved for identical relief. Inasmuch as Briar MG, SG Queens, and the D’Agostino firm have stated that they subsequently cross-moved (Motion Sequence No.3), for the identical relief as was sought in an earlier motion (Motion Sequence No.2), in order to cure any potential procedural defects in the making of that motion, the court will address the merits of Briar MG’s, SG Queens’, and the D’Agostino firm’s motion and cross motion, and the various relief sought therein, together only as their cross motion and will render a determination only as to that cross motion. Thus, their prior motion for identical relief is denied as moot. Before discussing the merits of the instant motion and cross motion, the court will address defendant’s contention, in the alternative, that summary judgment is premature due to a lack of disclosure in this matter. “[A]lthough determination of a summary judgment motion may be withheld where discovery is incomplete…there must be some evidentiary showing suggesting that completion of discovery will yield material and relevant evidence” (Zinter Handling, Inc. v. Britton, 46 AD3d 998, 1001 [3d Dept 2007] [internal citation omitted]; CPLR §3212 [f]). “‘The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion’” (Castro v. Rodriguez, 176 AD3d at 1033, quoting Lopez v. WS Distrib., Inc., 34 AD3d 759, 760 [2d Dept 2019]; see Jobson v. SM Livery, Inc., 175 AD3d 1510, 1512 [2d Dept 2019]). In light of defendant’s failure to make a sufficient evidentiary showing that further disclosure is necessary in this matter, the court will continue on to consider the merits of the instant motion and cross motion. Turning now to the merits of the instant action, the court will address Briar MG’s, SG Queens’, and the D’Agostino firm’s cross-motion for summary judgment on the causes of action stated in the complaint, for the release of defendant’s deposit as liquidated damages pursuant to the terms of the parties’ agreement, and to strike or dismiss defendant’s affirmative defenses and counterclaims. The court will also address defendant’s motion for summary judgment dismissing the complaint, for summary judgment on his counterclaim, and his motion to compel the return of the $655,000.00, deposit, with interest thereon. In the complaint, Briar MG, SG Queens, and the D’Agostino firm have alleged the following causes of action: 1) declaratory judgment, and 2) legal fees and disbursements. In his answer, defendant has alleged 14 affirmative defenses, set forth below, and a counterclaim for breach of contract. Defendant has alleged the following affirmative defenses: “[1] The Complaint is barred by documentary evidence…[2] The Complaint fails to state a cause of action upon which relief can be granted…[3] The Complaint is barred by Plaintiffs’ election of remedies…[4] The Complaint is barred by Plaintiffs’ breach of the express terms of the Contact and their breach of the implied covenant of good faith and fair dealing…[5] The Complaint is barred in its entirety because the Plaintiff did not serve a proper notice making time of the essence for the closing…[6] The Plaintiffs were not ready, willing or able to convey title in accordance with the subject contract…[7] The Complaint is barred by Plaintiffs’ unclean hands…[8] The Complaint is barred by the doctrines of waiver, estoppel and laches…[9] Plaintiffs were unable to convey title in accordance with the Contract due to undisclosed violations, easements and encumbrances on the property…[10] Plaintiffs did not conduct themselves in a commercially reasonable manner…[11] Plaintiffs did not use the title company specified in the contract…[12] Plaintiffs breached the representations and warranties they made in the contract…[13] Plaintiffs did not satisfy a condition precedent for the closing in that they cannot deliver title to the property in the manner promised by the contract, did not provide documents needed by the title company, and breached their representation that they had not diminished the development rights, thereby entitling Defendant to the return of the down payment…[and 14] The complaint is barred by the doctrines of impossibility, impracticability and frustration of purpose in that Defendant contracted to purchase the property as a development site but then learned that the Plaintiffs had in fact diminished the amount of available development rights. The complaint is barred because the parties were in discussions to adjourn the closing to, inter alia, allow Plaintiffs additional time to cure their title defects, when Plaintiffs abruptly, unilaterally, and without sufficient notice, purported to schedule a time-of-the-essence closing date on two days’ notice.” With regard to the second cause of action, set forth in Briar MG’s, SG Queens’, and the D’Agostino firm’s complaint, for legal fees and disbursements “incurred in connection with the…[c]losing and this litigation,” inasmuch as no independent cause of action for attorneys’ fees exists in New York, the second cause of action is, hereby, dismissed as an independent cause of action (see Terry v. Inc. Vil. of Patchogue, 23 Misc 3d 1118[A] [Sup Ct, Suffolk County 2009]; Response Med. Equip. v. Gen. Assur. Co., 13 Misc 3d 129[A] [App Term 2006]; see also DDR Const. Services, Inc. v. Siemens Indus., Inc., 770 F Supp 2d 627,664 [SDNY 2011]). Consequently, the court’s below determination is limited to the first cause of action for declaratory judgment by Briar MG and SG Queens (hereinafter referred to as plaintiffs). “‘To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented’” (Matter of New York City Asbestos Litig., 33 NY3d 20,25 [2019], quoting Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439,441 [1968]). “‘Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable’” (Matter o/New York City Asbestos Litig., 33 NY3d at 25, quoting Forrest v. Jewish Guild for the Blind, 3 NY3d 295,315 [2004]). On summary judgment, “facts must be viewed in the light most favorable to the non-moving party” (Matter o/New York City Asbestos Litig., 33 NY3d at 25 [internal quotes omitted]), and “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (id., at 25-26, quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). In support of their cross motion, plaintiffs have argued that they appeared at the time-of-the-essence closing and tendered their performance, that neither defendant nor any of defendant’s representatives or defendant’s title company appeared at the closing and/or tendered performance, and that defendant’s assertions in opposition are insufficient to avoid summary judgment. In opposition to plaintiffs’ cross motion and in support of his motion for summary judgment, defendant has argued, among other things, that the contract did not set a specific date of the time-of-the-essence closing, that plaintiffs were not ready, willing or able to convey the subject premises in accordance with the terms of the parties’ agreement, that he justifiably relied upon numerous express representations and warranties, which plaintiffs breached and which were conditions precedent to his obligation to close. “It is well settled that a contract is to be construed in accordance with the parties’ intent, which is generally discerned from the four comers of the document itself’ (MHR Capital Partners LP v. Presstek, Inc., 12 NY3d 640,645 [2009]; see Riesenburger Properties, LLLP v. Pi Assoc., LLC, 192 AD3d 835 [2d Dept 2021]), “‘and not from extrinsic evidence’” (Matter of Cricenti v. Cricenti, 60 AD3d 1052, 1053 [2d Dept 2009], quoting Herzfeld v. Herzfeld, 50 AD3d 851, 852 [2d Dept 2008]; see generally Blackburn Food Corp. v. Ardi, Inc., 189 AD3d 1329 [2d Dept 2020]). As a consequence, a “written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v. Philles Records, Inc., 98 NY2d 562, 569 [2002]; see Cooperative Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro, 25 NY3d 485, 493 [2015]; Friedman v. Goldstein, 189 AD3d 1183, 1187 [2d Dept 2020]; Dysal, Inc. v. Hub Props. Trust, 92 AD3d 826, 827 [2d Dept 2012]). “‘Whether an agreement is ambiguous is a question of law for the courts…Ambiguity is determined by looking within the four comers of the document, not to outside sources’” (Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 13 NY3d 398,404 [2009], quoting Kass v. Kass, 91 NY2d 554, 566 [1998]; see Gristede’s Operating Corp. v. Scarsdale Shopping Ctr. Assoc., LLC, 176 AD3d 1185, 1188 [2d Dept 2019]). Upon a careful review of the terms of the agreement dated September 20,2019, terms which terms are, notably, undisputed by the parties, the court finds that the language, terms and provisions set forth in the agreement were unambiguous and that the agreement fully encompassed all of the obligations, rights and remedies of the parties in the instant matter. In addition to the evidence set forth above, the record contains, among other things, defendant’s affidavits, the affidavit of non-party Arthur Della Salla (Salla), a Vice President of non-party Commonwealth Land Title Insurance Company (Commonwealth Land Title), a title company, copies of correspondence between the parties dated January 28,2020, February 3, 2020, February 5, 2020, February 13,2020, a transcript of a closing held on January 31,2020, a title report from non-party Liberty Land Abstract Inc. (Liberty Land Abstract), a title company, and copy of a pro forma policy from Commonwealth Land Title. In his affidavits, defendant has stated, among other things, that pursuant to the written agreement, he agreed to purchase the subject premises from plaintiffs, that he tendered a deposit, that the parties never agreed to a specific closing date, and that after signing the agreement, he obtained a title report from non-party Liberty Land Abstract which revealed “dozens of additional title defects” and “identified numerous title objections.” Defendants further stated that despite his attorney notifying plaintiffs that there were title defects and that plaintiffs had “made material misrepresentations in the [a]greement, and were unable to convey the [p]remises in accordance with the [a]greement…[plaintiffs, nevertheless]…scheduled a sham closing, demanding that [defendant] appear and tender the balance of the purchase price even though they were not ready, willing or able to close.” With regard to the closing date, defendant stated that “giving two days’ notice was wholly inadequate.” He further stated that plaintiffs did not cure any additional title defects, nor did they notify him that they were using an alternate title company at the closing, and that his performance of the agreement was contingent upon plaintiffs’ performance. As is relevant on the instant motion and cross motion, sections one and two of the agreement executed by the parties provided, among other things, that defendant agreed to purchase the subject property from plaintiffs, as tenants in common, for a purchase price of $13,100,000.00, with a deposit in the amount of $655,000.00, to be delivered to the escrow agent, time being of the essence, and that the balance of the purchase price “shall be paid on the Closing Date (as defined herein) by wire transfer of immediately available federal funds pursuant to wiring instructions provided by [plaintiffs] in writing to [defendant] prior to the Closing Date.” Section four of the agreement, entitled “Title and Title Insurance,” provided, in part, the following: “(a) Condition of Title. If the Closing occurs, Seller shall give and Purchaser shall accept such title to the Property as the Title Company (as hereinafter defined) is willing to insure in accordance with its standard form of title policy and at standard rates, subject only to the Permitted Exceptions (as defined in Section 4(e)). In connection with the foregoing, Seller agrees to satisfy or remove all Monetary Encumbrances (as hereinafter defined) at or prior to Closing. For purposes of this Agreement, the term ‘Monetary Encumbrance’ shall mean (i) a mortgage caused or created by Seller and (ii) any and all voluntary liens or violations of law received by Seller prior to the Closing Date that (A) are in liquidated amounts and may be satisfied solely by the payment of money and (B) do not exceed, in the aggregate, $25,000.00. (b) Title Commitment and Undated Survey. Purchaser will order from Liberty Land Abstract Inc. (the ‘Title Company’), prior to or concurrently herewith, with respect to the Property, (i) a title report with all underlying title documents, (ii) an owner’s title insurance commitment (a ‘Commitment’) from the Title Company which obligates the Title Company to issue, at Purchaser’s sole cost and expense, an owner’s title insurance policy (a ‘Title Policy’) at Closing, subject to Permitted Exceptions, and (iii) an updated survey for the Property (a ‘Survey’). Purchaser shall cause (y) the Title Company to promptly deliver a copy of the Commitment, together with true and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, to Seller’s attorneys simultaneously with the delivery of same to Purchaser or Purchaser’s attorneys and (z) deliver a copy of the Survey to the Title Company and Seller’s attorneys promptly after Purchaser’s or Purchaser’s attorney’s receipt of the Survey.” Section four of the agreement further provided a list of “Permitted Exceptions” at part (e), which stated that “[t]he sale of the Property shall be subject to each and all of the following (collectively, ‘Permitted Exceptions’) which Permitted Exceptions shall not be Additional Title Objections…” The agreement also provided, at part (c), the following: “Notwithstanding anything contained herein to the contrary, if the Title Company shall be unwilling to remove any Monetary Encumbrance or Additional Title Objection(s) which another national title insurance company licensed to do business in the State of New York selected by Seller (either directly or through an agent) would be willing to remove, then Seller shall have the right to substitute such national title insurance company for the Title Company. If Purchaser elects not to use such national title insurance company, such Monetary Encumbrance or Additional Title Objection(s) which such national title insurance company would be willing to remove shall not constitute objections to title and shall be deemed Permitted Exceptions.” Section five of the agreement, entitled “Closing Date, provided the following: “The closing of the transactions set forth herein (the ‘Closing’) shall be held at the offices of Seller’s counsel, or, if mutually agreed upon by Purchaser and Seller, through an escrow arrangement with the Title Company, at 11:00 a.m. (New York City time) on or before January 31, 2020, TIME BEING OF THE ESSENCE as to Purchaser (as the same may be adjourned in accordance with the express provisions of this Agreement, the ‘Closing Date’)” (emphasis in original). Section seven of the agreement, entitled “Conditions Precedent,” provided the following: “(a) Purchaser’s Conditions of Closing. Purchaser’s obligations to pay the Purchase Price on the Closing Date and to otherwise consummate the Closing are subject to the following conditions precedent being fully satisfied and subsisting as of the Closing Date (or waived by Purchaser): (i) Seller shall have duly performed in all material respects all of Seller’s obligations under this Agreement to be performed as of the Closing Date, and shall have delivered to Purchaser all documents required by this Agreement, including the Deed and the other documents required under Section 8(a) hereof; and (ii) Seller shall have paid all transfer taxes, if applicable. Purchaser shall have the right to waive the satisfaction, in whole or in part, of any of the conditions precedent set forth in this Section 7(a), but no waiver shall be effective unless it is in writing and duly executed by Purchaser. If any condition specified in this Section 7(a) is not timely satisfied (or waived by Purchaser), Purchaser shall have the right to terminate this Agreement, in which event the provisions of Section 11(c) shall govern; it being specifically understood and agreed that nothing in this Section 7(a) shall relieve Seller from liability for any breach of this Agreement by Seller and that the provisions of Section 11(a) hereof shall govern and control in the event of a default by Seller under this Agreement. (b) Seller’s Conditions of Closing. Seller’s obligations to deliver the Deed and to otherwise consummate the Closing are subject to the following conditions precedent being fully satisfied and subsisting as of the Closing Date (or waived by Seller): (i) Purchaser shall have paid the Purchase Price and all other amounts payable by Purchaser, as herein provided; and (ii) Purchaser shall have delivered to Seller all documents required by this Agreement, including the documents required under Section 8(b) hereof. Seller shall have the right to waive the satisfaction, in whole or in part, of any of the conditions precedent set forth in this Section 7(b), but no waiver shall be effective unless it is in writing and duly executed by Seller. If any condition specified in this Section 7(b) is not timely satisfied (or waived by Seller), Seller shall have the right to terminate this Agreement, in which event the provisions of Section 11(c) shall govern; it being specifically understood and agreed that nothing in this Section 7(b) shall relieve Purchaser from liability for any breach of this Agreement by Purchaser and that the provisions of Section 11(b) hereof shall govern and control in the event of a default by Purchaser under this Agreement.” After executing the agreement, it is undisputed in the record that defendant delivered to the D’Agostino firm, as the escrow agent, a deposit in the amount of $655,000.00, which was to be held in escrow in accordance with the terms of the agreement. In a letter dated January 28, 2020, the D’Agostino firm confirmed with defendant the time-of-the-essence closing date containing the following language: “Please be advised that the closing of title for the captioned Premises is hereby scheduled for January 31, 2020 at 11:00 a.m. at the offices of D’Agostino, Levine, Landesman, Lederman, Rivera & Sampson, LLP, 345 Seventh Avenue, 23rd Floor, New York, NY 10001, TIME BEING OF THE ESSENCE AS TO PURCHASER. By copy of this letter, we are notifying the Title Company (as defined in the Contract) to be present at the closing. At the closing, Seller will tender the deed together with all necessary contract documents, keys and possession of the Premises. Simon Rothkrug has advised us that he is representing you along with Heng A. Chen and has reached out to the undersigned to negotiate the terms of an extension of the closing date. Neither any discussion as to the terms of an extension of the closing date nor our receipt or consideration of a draft amendment to the Contract are to be deemed binding upon any party to the Contract and in no way are to be deemed to modify the terms of the Contract. In the event you fail to close title and deliver the balance of the Purchase Price (as defined in the Contract) in accordance with the terms of the Contract on January 31, 2020, Seller shall retain the Deposit (as defined in the Contract) as liquidated damages” (emphasis in original). It is undisputed that on January 31, 2020, plaintiffs, among others, appeared for the closing. A transcript of the closing held on January 31, 2020, reflected that defendant’s counsel was notified both in writing, orally and via email that the closing was to take place, as well as the time and date having been provided for in the agreement, and that no representative for defendant appeared at the closing. In a letter dated February 3, 2020, plaintiffs declared defendant in default and demanded and directed the D’Agostino firm, as the escrow agent, to release defendant’s deposit in accordance with the escrow provisions set forth in the agreement. Subsequently, in a letter dated February 5, 2020, the D’Agostino firm notified defendant of its receipt of plaintiffs’ notice of default and of its intent to disburse the deposit in accordance with the terms of the agreement. In a letter dated February 13, 2020, defendant notified the D’Agostino firm of his objection to plaintiffs’ “(n]otice and demand for the release of the deposition to seller and reject[ed] seller’s characterization of events and purchaser’s default.” Defendant’s February 13,2020, letter also provided that: “[f]urther notice is hereby given that this objection is made pursuant to the escrow provisions of the contract Exhibit C and of escrow agent’s duty pursuant to paragraph (e) thereof to hold the deposit until written notice signed by both parties or final order of a court of competent jurisdiction.” “In order to make time of the essence, ‘there must be a clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time in which to act’” (Rodrigues NBA, LLC v. Allied XV, LLC, 164 AD3d 1388, 1389 [2d Dept 2018], quoting Zev v. Merman, 134 AD2d 555,557 [2d Dept 1987], affd 73 NY2d 781 [1988]). “When a provision that time is to be of the essence is inserted in a real property contract, the date established as the law day takes on especial significance” (Grace v. Nappa, 46 NY2d 560, 565 [1979]). Despite defendant’s contentions to the contrary, after a careful reading of the plain terms of the agreement between the parties, the court finds that section five of the agreement provided sufficient, ‘”clear, distinct, and unequivocal notice’” (Rodrigues NBA, LLC v. Allied XV, LLC, 164 AD3d at 1389, quoting Zev v. Merman, 134 AD2d at 557), that the time-of-the-essence closing was to be held on January 31, 2020. Additionally, the subsequent notice dated January 28, 2020, sent to defendant, reiterated and confirmed the time, date and location of the time-of-the-essence closing. Furthermore, contrary to defendant’s contentions, when time is of the essence, such as In this case, under these circumstances, it was not unreasonable for plaintiffs to set the time of the essence closing for the date and time that were expressly set forth in the parties’ agreement. While plaintiffs have argued that defendant’s failure to appear at the time-of-the-essence closing placed defendant in default and that such failure has deemed any purported title defects waived as a matter of law, defendant has argued that plaintiffs cannot hold him in default and, thus, retain his deposit, since they were not ready, willing or able to convey the subject premises in accordance with the agreement. When time is of the essence, “the parties bound by that clause must tender performance on the law day unless the time for performance has been extended by mutual agreement” (184 Joralemon, LLC v. Brklyn Hts Condos, LLC, 117 AD3d 699, 702 [2d Dept 2014]; see Grace v. Nappa, 46 NY2d at 565; Rufeh v. Schwartz, 50 AD3d 1000, 1001 [2d Dept 2008]). Furthermore, “[w]here time is of the essence, performance on the specific date is a material element of the contract, and failure to perform on that date constitutes a material breach of the contract” (184 Joralemon, LLC v. Brklyn Hts Condos, LLC, 117 AD3d at 702; see Rufeh v. Schwartz, 50 AD3d at 1001; New Colony Homes, Inc. v. Long Is. Prop. Group, LLC, 21 AD3d 1072, 1073 [2d Dept 2005]). It is undisputed that plaintiffs appeared at the time-of-the-essence closing on January 31, 2020, and that neither defendant, nor defendant’s representatives appeared on said date at the closing. It is well settled that, in general, “[i]n order to place the vendor of realty under a contract of sale in default for a claimed failure to provide clear title, the purchaser normally must first tender performance himself and demand good title” (Ilemar Corp. v. Krochmal, 44 NY2d 702,703 [1978]; see Cohen v. Kranz, 12 NY2d 242, 246 [1963]; Ardi v. Martin, 79 AD3d 1078, 1079 [2d Dept 2010]; R.C.P.S. Assoc. v. Karam Developers, 258 AD2d 510,511 [2d Dept 1999]). “Tender of performance by the purchaser is excused only if the title defect is not curable, for in such a case it would serve no purpose to require the purchaser to go through the futile motions of tendering performance” (Ilemar Corp. v. Krochmal, 44 NY2d at 703; see Texter v. Trotta, 48 AD3d 455,455-56 [2d Dept 2008]; R.C.P.S. Assoc. v. Karam Developers, 258 AD2d at 511). In such a case, “a vendee can recover his money paid on the contract from a vendor who defaults on law day without a showing of tender or even of willingness and ability to perform where the vendor’s title is incurably defective” (Cohen v. Kranz, 12 NY2d at 246). Defendant has stated that after signing the agreement, he obtained a title report from Liberty Land Abstract which identified numerous title objections, that his counsel then notified plaintiffs of those title defects, informed plaintiffs that they had made material misrepresentations in the agreement, and that they were unable to convey the subject premises in accordance with the agreement. He stated that he did not appear at the closing is because it was clear that Liberty Land Abstract would not insure title and plaintiffs never informed him that they had found a substitute title company for the closing. The title report from Liberty Land Abstract, for a policy from non-party Old Republic National Title Insurance Company, with an effective date of July 31, 2019, listed in Schedule B, the various policy exceptions identified. At issue between the parties, are the particular exceptions of an easement agreement recorded against the premises listed in Liberty Land Abstract’s title report as “Easement Agreement recorded in Reel 1904 Page 878,” and two sidewalk liens, listed in the title report as follows: “NOTICE OF SIDEWALK LIEN NO. 1448/90 FILED ON 03.26.1990: NOTE: This item will be excepted into the fee policy unless a Certificate of Dismissal has been obtained from the Department of Transportation or an appropriate escrow will be set. Failure to repair the sidewalk or to remove the violation may result in a future lien, against which the policy will not protect. The Exception may only be marked OMIT if an appropriate escrow is established or a Certificate of Dismissal is obtained. (See NYC Administrative Code Sec. 19-152) (against lot fka 29) 16. NOTICE OF SIDEWALK LIEN NO. S/L 113-96 FILED ON 03.07.1997: NOTE: This item will be excepted into the fee policy unless a Certificate of Dismissal has been obtained from the Department of Transportation or an appropriate escrow will be set. Failure to repair the sidewalk or to remove the violation may result in a future lien, against which the policy will not protect. The Exception may only be marked OMIT if an appropriate escrow is established or a Certificate of Dismissal is obtained. (See NYC Administrative Code Sec. 19-152) (against lot fka 17).” Commonwealth Land Title’s pro forma policy also included exceptions from coverage in Schedule B, including, but not limited to the following: “7. Easements set forth in Agreement dated August 8; 1985 between Jack Goodstein and MOIP Associates and recorded on August 20, 1985 in Reel 1904 page 878. 8. Notice of Sidewalk Violation #1448/90 filed March 26, 1990 (old lot 29).” Salla, a Vice President of Commonwealth Land Title stated in his affidavit that Commonwealth Land Title’s counsel attended the scheduled closing on January 31,2020, that said counsel reviewed the tendered deed, transfer tax forms and title affidavits and that Commonwealth Land Title was fully prepared to issue an owner’s policy of title insurance to defendant in the form of the pro forma policy annexed to the record, containing the same Schedule B exceptions that are set forth in the pro forma policy, upon payment of the premium therefor. Contrary to defendant’s contentions, plaintiffs have argued that they were entitled to use a substitute title insurance company, in this case, Commonwealth Land Title, pursuant to the express terms of the agreement, that defendant’s arguments regarding any easements and two sidewalk liens fail and are frivolous because they were “permitted exceptions” or were otherwise permitted or inapplicable under the terms of the agreement. With regard to title exceptions, the agreement provided a thorough list of title exceptions which were within the contemplation of the agreement at section 4 (e), by stating that the sale of the subject premises was subject to “each and all of the following…Permitted Exceptions,” which were set forth as follows: “(iii) those matters set forth on Exhibit E attached hereto and made a part hereof; (iv) any title exceptions, encumbrances or liens which become a Permitted Exception pursuant to Section 4(c) hereof…” Furthermore, Exhibit E of the agreement, entitled “Title Exceptions,” provided as follows: “1. Covenants, conditions, easements, leases, agreements of record, etc. set forth in Boundary line agreement dated September 5, 1945 and recorded on October 19, 1945 in Office of the City Register, Queens County in Liber 5078 Page 82; 2. Covenants, conditions, easements, leases, agreements of record, etc. set forth in declaration dated October 18, 1972 and recorded on October 20, 1972 in Office of the City Register, Queens County in Reel 614 Page 1094; 3. Covenants, conditions, easements, leases, agreements of record, etc. set forth in lease dated October 4, 1984, a memorandum of which was and recorded on August 20, 1985 in Office of the City Register, Queens County in Reel 1904 Page 865; 4. Agreement dated August 8, 1985 and recorded on August 20, 1985 in Office of the City Register, Queens County in Reel 1904 Page 870; 5. Covenants, conditions, easements, leases, agreements of record, etc. set forth in agreement dated August 8, 1985 and recorded on August 20, 1985 in Office of the City Register, Queens County in Reel 1904 Page 878; and 6. Notice of Sidewalk Violation #1448/90 Filed March 26, 1990 (old lot 29).” A careful reading of the terms of the agreement reflects that a sidewalk violation lien known as “violation #1448/90″ filed on March 26, 1990, and an easement known as having been made by agreement recorded in Reel 1904 Page 878, contained in both Liberty Land Abstract’s title report and Commonwealth Land Title’s pro forma policy, were permitted exceptions since they were listed in Exhibit E of the agreement and, thus, were contemplated by the parties and memorialized in the agreement. With regard to a sidewalk violation listed in Liberty Land Abstract’s title report as “NOTICE OF SIDEWALK LIEN NO. S/L 113-96 FILED ON 03.07.1997,” a review of the agreement reflects that this was a title exception that was not listed as a permitted exception or title exception in the agreement. However, plaintiffs have argued that this sidewalk violation lien was a non-monetary lien which plaintiffs were not obligated to remove pursuant to.8ection 4 (a) of the agreement and that it does not constitute a material issue that excuses defendant’s performance under the agreement. As set forth more fully above, Section 4 (a) of the agreement provided that plaintiffs agreed to remove or satisfy “all Monetary Encumbrances…at or prior to Closing,” and that the term Monetary Encumbrance means a mortgage created by plaintiffs and “any and all voluntary liens or violations of law received by Seller prior to the Closing Date that (A) are in liquidated amounts and may be satisfied solely by the payment of money and (B) do not exceed, in the aggregate, $25,000.00.” A review of the record containing a copy of the sidewalk lien entitled “Judgment Docket & Lien Information: Sidewalk Lien Index — Control Number 000326794 — 01,” which was annexed to, and made a part of, Liberty Land Abstract’s title report, reflects that the lien was a non-monetary encumbrance. Therefore, based upon the terms of the agreement, plaintiffs were not obligated to remove it at or prior to closing. Furthermore, the sidewalk lien (Control Number 000326794 — 01), was not listed as a title exception by Commonwealth Land Title in their pro forma policy. A careful reading of the terms of the parties’ agreement reflects that it provided, at part (c), that if Liberty Land Abstract was “unwilling to remove any Monetary Encumbrance or Additional Title Objection(s),” which another title company would be willing to remove, then plaintiffs had the right to substitute another title insurance company and that if defendant elected not to the substituted title insurance company, the encumbrances and objections that the substitute company “would be willing to remove shall not constitute objections to title and shall be deemed Permitted Exceptions.” However, based upon the terms of the agreement, plaintiffs were permitted to use Commonwealth Land Title as the title insurance company when Liberty Land Abstract was unwilling to remove any monetary encumbrance or additional title objections, which Commonwealth Land Title was willing to remove. Upon a thorough, careful review of the totality of evidence contained in the record, the court has determined that since it is undisputed that defendant never appeared at the closing, he never tendered performance or demanded good title on law day, and since he has failed to sufficiently demonstrate that any alleged defects in title were incurable, defendant never placed plaintiffs in default and that his failure to appear constituted an constituted an anticipatory breach of contract (see Ilemar Corp. v. Krochmal, 44 N.2d at 703; Ardi v. Martin, 79 AD3d at 1079; R.C.P.S. Assoc. v. Karam Devs., 258 AD2d at 510-11; Capozzola v. Oxman, 216 AD2d 509, 510 [2d Dept 1995]). Moreover, under these circumstances, plaintiffs have sufficiently demonstrated that they were ready, willing, and able to convey title. Furthermore, under the particular circumstances in this matter, plaintiffs were entitled to “a reasonable time beyond law day to make [their] title good” (Cohen Kranz, 12 NY2d at 246; see Ilemar Corp. v. Krochmal, 44 NY2d at 703-04; Martocci v. Schneider, 119 AD3d 746, 748-49 [2d Dept 2014]; Texter v. Trotta, 48 AD3d at 456 [2d Dept 2008]). To the extent that plaintiffs have cross-moved to strike or dismiss defendant’s affirmative defenses, they have argued that none defendants’ affirmative defenses are meritorious. With regard to the first affirmative defense stating that the complaint is barred by documentary evidence, plaintiffs have agreed with this defense and, in light of the above determinations, have satisfied their prima facie burden on their motion for summary judgment on the complaint using the documentary evidence of the parties’ agreement. Therefore, this first affirmative defense has been resolved in favor of plaintiffs and defendant has failed to sufficiently oppose the dismissal of this defense or raise a triable issue of fact. With regard to defendant’s second affirmative defense that the complaint fails to state a cause of action upon which relief can be granted, inasmuch as plaintiffs have demonstrated that defendant himself demanded a judicial determination in the form of a “final order of a court of competent jurisdiction,” in his notice of objection, dated February 13, 2020, plaintiffs have demonstrated their entitlement to the dismissal of this affirmative defense. Defendant has failed to sufficiently oppose the dismissal of this defense and has failed to raise a triable issue of fact as to this defense. Plaintiffs contend that defendant’s third affirmative defense regarding plaintiffs’ election of remedies is without merit since the parties’ agreement provided for forfeiture of the deposit as the sole remedy in the event of defendant’s breach of the agreement. Inasmuch as plaintiffs have satisfied their burden as to this defense by relying upon the plain terms of the agreement, and defendant has failed to sufficiently raise a triable issue of fact or to sufficiently oppose the dismissal of this defense, plaintiffs are entitled to the relief sought as to defendant’s third affirmative defense. With regard to defendant’s fourth, fifth, sixth, seventh, eighth, ninth, and tenth affirmative defenses, inasmuch as plaintiffs have demonstrated that these defenses are without merit, as has been more fully discussed in the court’s above determination, plaintiffs have satisfied their prima facie burden as to these affirmative defenses. In opposition, defendant has failed to sufficiently oppose the dismissal of these defenses and has failed to sufficiently raise a triable issue of fact as to any of these defenses. Therefore, plaintiffs are entitled to the relief sought as to defendant’s fourth, fifth, sixth, seventh, eighth, ninth, and tenth affirmative defenses. Inasmuch as plaintiffs have sufficiently demonstrated that the terms of the agreement require the dismissal of defendant’s eleventh affirmative defense, that plaintiffs did not use the title company specified in the contract, because the section four of the agreement expressly permits plaintiffs to use an alternate title company, and defendant has failed to sufficiently oppose the dismissal of this defenses or to raise a triable issue of fact as to this defense, plaintiffs are entitled to the dismissal of defendant’s eleventh affirmative defense. As to defendant’s twelfth, thirteenth and fourteenth affirmative defenses, stating that plaintiffs breached the representations and warranties they made in the contract, that plaintiffs did not satisfy a conditions precedent for the closing, did not provide documents needed, and breached their representation that they had not diminished the development rights, and that the complaint is barred by the doctrines of impossibility, impracticability and frustration of purpose, plaintiffs have sufficiently demonstrated, as has been more fully set forth in the court’s above determination regarding plaintiffs’ cross motion for summary judgment, that these defense lacks merit since the agreement contained extensive disclaimers, permitted exceptions and title exceptions that addressed and encompassed the issues and title exceptions raised by defendant. In opposition, defendant has failed to sufficiently oppose or raise a triable issue of fact as to these defenses and, thus, plaintiffs are entitled to the dismissal of defendant’s twelfth, thirteenth and fourteenth affirmative defenses. To the extent that defendant has alleged, as part of his counterclaim, that plaintiffs modified and/or misrepresented the terms of one or more leases for the subject premises and made other misrepresentations as to their ability to perform under the agreement, he has failed to meet his burden. He has alleged that, among other things, plaintiffs violated section 7(a)(i), of the agreement, which provided that defendant’s obligation to consummate the closing was subject to plaintiffs performing in all material respects under the agreement, and delivering to defendant all documents required, including the deed, section 8(a), which provided which closing documents plaintiffs were to provide, and section 12(d)(vi), which provided that: “From the date of this Agreement until the Closing or earlier termination of this Agreement, Seller shall:…(iv) not enter into any contracts with any other party with respect to the sale of the Property.” A review of the evidence has demonstrated that defendant has failed to meet his burden inasmuch as he has failed to allege sufficient facts to support these claims of what appear to be fraud and/or material misrepresentation in the terms of agreement, and has failed to sufficiently demonstrate, through admissible evidence in the record, that genuine issues of material fact exist as to these allegations. With regard to the issue of liquidated damages, Section 11 (a) of the agreement, entitled “Defaults/Remedies,” provides, in relevant part, the following: “Purchaser expressly waives its right to seek damages (including consequential or punitive damages) in the event of Seller’s default hereunder at or prior to Closing (other than the right to receive reimbursement for Purchaser’s Title Charges.” Section 11 (b) further provides the following: “Purchaser’s Default. If Purchaser fails to perform any of its material obligations pursuant to this Agreement at or prior to Closing for any reason (other than Seller’s default), when required to, or, if prior to Closing, any one or more of Purchaser’s representations or warranties are breached in any material respect, Seller shall be entitled, as its sole and exclusive remedy at law or in equity (in full satisfaction of claims against Purchaser hereunder) to (i) terminate this Agreement, and (ii) recover the Deposit from Escrow Agent as liquidated damages and not as penalty. Seller and Purchaser agree that Seller’s damages resulting from Purchaser’s default at or prior to Closing are difficult, if not impossible, to determine and the Deposit is a fair estimate of those damages which has been agreed to in an effort to cause the amount of such damages to be certain. Nothing contained in this Section 11(b) shall limit Seller’s rights against Purchaser by reason of any indemnity obligations of Purchaser to Seller expressly set forth in this Agreement which shall survive the termination of this Agreement or the Closing.” The January 28, 2020, letter reiterated that defendant’s failure to close would result in the plaintiffs retaining defendant’s deposit amount as liquidated damages. The court finds that the evidence has demonstrated that in the event of defendant’s default “for any reason,”, plaintiffs shall be entitled to the deposit amount from the escrow agent as liquidated damages in “full satisfaction of claims against” defendant. Therefore, based upon the evidence in the record and the above determinations, as a result of defendant’s material breach of the terms of the parties’ agreement, plaintiffs are entitled to the dismissal of defendant’s 14 affirmative defenses and defendant’s counterclaim for breach of contract, entitled to summary judgment on the cause of action for a declaratory judgment set forth in the complaint, and entitled to the release of defendant’s deposit as liquidated damages in accordance with the express terms set forth in the agreement (Capozzola v. Oxman, 216 AD2d at 509-11; Ilemar Corp. v. Krochmal, 44 NY2d at 703-04; Texter v. Trotta, 48 AD3d at 456). As such, defendant is not entitled to summary judgment dismissing the complaint, for summary judgment on his counterclaim, or to the return of the deposit in the amount of $655,000.00, with interest thereon. Lastly, the court will address the branch of plaintiffs cross motion seeking to have the issue of attorneys’ fees to be determined at an inquest. The court notes that, while defendant contends that the D’Agostino firm cannot insert itself into the instant dispute between the parties for the purpose of collecting attorneys’ fees, the court has, in the above determination, dismissed any independent cause of action asserted by the D’Agostino firm for attorneys’ fees. However, to the extent that “[i]t is well settled in New York that a prevailing party may not recover attorneys’ fees from the losing party except where authorized by statute, agreement or court rule” (U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 3 NY3d 592, 597 [2004]; see Specialized Products and Services, Inc. v. Steelbro IntI. Co., Inc., 161AD3d 1127, 1128 [2d Dept 2018]; Great Neck Terrace Owners Corp. v. McCabe, 101 AD3d 944, 946 [2d Dept 2012]), plaintiffs have argued that the D’Agostino firm is entitled to attorneys’ fees pursuant to the terms set forth in the agreement. As plaintiffs have pointed to, the agreement provides, in “Exhibit C,” entitled “Escrow Provisions,” that the: “Escrow Agent agrees to hold in escrow the Deposit delivered to Escrow Agent pursuant to this Agreement upon the following terms and conditions…(i) Seller and Purchaser jointly and severally (with right of contribution) agree to defend (by attorneys selected by Escrow Agent), indemnify and hold Escrow Agent harmless from and against all costs, claims and expenses (including reasonable attorneys’ fees either paid to retain attorneys or representing the fair value of legal services rendered by Escrow Agent to itself and disbursements, court costs and litigation expenses) incurred in connection with the performance of Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or suffered by Escrow Agent in bad faith or in willful disregard of this Agreement or involving gross negligence on the part of Escrow Agent.” Exhibit C, part (k), of the agreement further provides, as has been more fully set forth in the above determination, that the D’Agostino firm was permitted to act as counsel to plaintiffs in any dispute regarding the deposit or any other dispute between the parties. Section 33 of the agreement further provided the following: “(c) In the event of any litigation or any other action to enforce the provisions of this Agreement, the prevailing party in such litigation or such action shall be entitled to be reimbursed by the other party for the prevailing party’s reasonable out-of-pocket costs and expenses (including reasonable counsel fees and court costs). (d) The provisions of this Section 33 shall survive the Closing.” Contrary to defendant’s contention that the D’Agostino firm was obligated, pursuant to part (e) of Exhibit C to the agreement, only to hold the deposit pending any litigation by the parties and is not entitled to attorneys’ fees, the terms of the agreement, set forth above, also permitted the D’Agostino firm to act as plaintiffs’ counsel in the instant litigation and to recover costs, claims and expenses incurred in connection with the performance of their duties, from the prevailing party. In light of the above, plaintiffs have sufficiently demonstrated that the D’Agostino firm is entitled to an award of attorneys’ fees for the instant litigation based upon the terms of the parties’ agreement. Defendant has failed to sufficiently raise an issue as to the D’Agostino firm’s entitlement to said fees pursuant to the terms of the agreement. Therefore, plaintiffs have satisfied their burden on this branch of their cross motion and are entitled to an inquest on the issue of attorneys’ fees. The parties’ remaining contentions and evidence submitted in support of the within motions and cross motions have been thoroughly considered by the court in making this determination and have been found to be either without merit or need not be addressed in light of the foregoing. Accordingly, plaintiffs’ motion for a default judgment and to sever the issue of attorneys’ fees has been withdrawn. Plaintiff’s motion for summary judgment on the complaint, for the release of defendant’s deposit in the amount of $655,000.00, to plaintiff’s as liquidated damages, to strike or dismiss defendant’s affirmative defenses and counterclaims, and for attorneys’ fees to be determined at a fee inquest, is denied as moot. Defendant’s motion for summary judgment dismissing the complaint, for summary judgment on his counterclaim, and for the return of the $655,000.00, deposit, with interest thereon, is denied in its entirety. The branches of defendant’s cross motion made pursuant to CPLR S 3211 (a)(8), and to disqualify the D’Agostino firm from representing plaintiffs in this action, are denied, and the alternative branches of defendant’s cross motion made pursuant to CPLR §§317, 3012 (d), and 5015 (a)(l), are denied as moot. The branch of plaintiff’s cross motion for summary judgment on the complaint is denied as to the cause of action for attorneys’ fees, and granted as to the cause of action for a declaratory judgment. Further, the branches of plaintiff’s cross motion for the release of defendant’s deposit to plaintiffs as liquidated damages, to strike or dismiss defendant’s affirmative defenses and counterclaims, and for attorneys’ fees to be determined at an inquest are granted, and the matter is set down for an inquest. Settle Order. Dated: June 1, 2021