The following e-filed documents, listed on NYSCEF as document numbers 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 56, 57 (Motion Seq. #001) were read on this motion seeking summary judgment. DECISION AND ORDER Upon the foregoing cited papers, the Decision and Order of this Motion is as follows: Plaintiff moves for an order granting it summary judgment pursuant to CPLR 3212. Defendant opposes Plaintiffs’ applications. The Court grants Plaintiff’s application for summary judgment as follows. Background By Contract of Sale — Office, Commercial and Multi-Family Residential Premises dated November 17, 2017 (“Contract”) (NYSCEF #23), Plaintiff contracted to sell its lot with a commercial building located at 110 East 138th Street, Bronx, New York to Defendant. Between March 2018 and February 2020, the parties entered into three written amendments providing, among other things, for closing extensions, additional deposits and adjournment payments. Plaintiff annexes the First Amendment (NYSCEF # 30), Second Amendment (NYSCEF # 31) and Third Amendment (NYSCEF # 32) to the Contract. On May 12, 2020, Defendant sent a formal notice of termination of the Contract to Plaintiff on the alleged basis that the existence of the 1983 Appropriation of a section of the subject premises by the State of New York prevents Plaintiff from being able to deliver marketable title as described in the Contract. Defendant commenced a related action in this Court under Index Number 24092/2020E asserting causes of action for conversion, breach of express warranty, and unjust enrichment against Plaintiff herein. By Decision and Order dated May 12, 2021 (“Order”), this Court dismissed the action commenced by Defendant based upon the documentary evidence and a failure to state a cause of action. The Court determined that the documentary evidence conclusively established as a matter of law that the 1983 Appropriation was a permitted exception under the parties’ Contract. The Court also determined that Defendant waived any related claim that Plaintiff breached the Contract based upon its alleged inability to provide marketable title. Summary Judgment Plaintiff commenced the instant action seeking damages for Defendant’s breach of the Contract and for a declaration that it is entitled to retain any payments in lieu of rent received under the Contract. Plaintiff argues that it is entitled to an order granting summary judgment based upon the Court’s prior Order which dismissed Defendant’s claims to recover the down payment. Plaintiff insists that Defendant should be collaterally estopped from asserting any right to repudiate the Contract. Plaintiff suggests that Defendant presents the same arguments that were presented in the prior action. Plaintiff notes that this Court determined that the 1983 Appropriation was a Permitted Exception allowed by the Contract and insists that it could therefore provide marketable title. Plaintiff also notes that this Court determined that Defendant waived any claim that the 1983 Appropriation made the title unmarketable. Plaintiff insists that it is entitled to keep Defendant’s down payment as liquidated damages in accordance with the Contract based upon Defendant’s refusal to close and breach of contract. Plaintiff notes that the Court’s prior Order did not resolve its right to retain the down payment. It is well settled that a party moving for summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidence to eliminate any material issues of fact from the case (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). The moving party’s evidence, most important, must be in admissible form (Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 1067 [1979]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposition papers (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez, 68 NY2d 320). The Court finds that Plaintiff makes a prima facie showing of entitlement to a judgment as a matter of law. There is no dispute that Defendant attempted to terminate the Contract and refused to close title. Plaintiff presented proof, including among other things, a copy of this Court’s Order and the Contract, to establish that Defendant was not entitled to terminate the Contract because the 1983 Appropriation was a Permitted Exception under the terms of the Contract. Plaintiff established that Section 18.08 of the Contract clearly provides that Schedule B of the Contract prevails over any other inconsistent provision of the Contract including the warranties. Plaintiff also established that the 1983 Appropriation falls withing Permitted Exception 10, 12, and 13 and therefore enabling it to transfer marketable title. Relying on this Court’s Order and the Contract, Plaintiff presented proof that Defendant waived its right to challenge the marketability of the title by failing to timely provide notice of its intention during the due diligence period. Plaintiff established that Defendant was aware of the 1983 Appropriation prior to the expiration of the due diligence period. The Court finds that Plaintiffs proof is sufficient to establish its prima facie case that Defendant breached the parties’ Contract by refusing to close and that it is therefore entitled to retain the down payment and additional payments as liquidated damages in accordance with Section 13.04 of the Contract. Accordingly, the burden shifts to Defendant “to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial in this action” (Alvarez, 68 NY2d 320). Defendant argues that Plaintiff mischaracterizes this Court’s Order and insists that Plaintiff failed to meet its burden because its prior action was dismissed on a different standard of law. Defendant suggests that the Court did not determine that it improperly terminated the Contract. Defendant asserts that there are material questions of fact as to whether the 1983 Appropriation was included as a Permitted Exception under the Contract. Defendant insists that “none of the Permitted Exceptions clearly and unambiguously refer to the 1983 Appropriation.” Defendant asserts that the Contract only allows the Permitted Exceptions as an exception to title if they do not render the property unmarketable. Defendant argues that the 1983 Appropriation renders the property unmarketable even if the Permitted Exception included the appropriation. Defendant asserts that Plaintiff does not have fee simple title of the property contracted for in the Contract based upon the 1983 Appropriation. Defendant notes that section 13.01 of the Contract provides in relevant part that “the Permitted Exceptions shall only be acceptable as exceptions to title, provided and upon the condition that, (1) the same do not render title to the Premises unmarketable….” Defendant also agues that it would be inequitable to allow Plaintiff to retain the down payment and the additional payments because it relied on Plaintiffs misrepresentations regarding the size and value of the subject property. Defendant notes that Section 4 of the Contract gives it “‘the right to terminate this Contract and receive a full refund of the Downpayment with interest thereon’ if any of the representations and warranties by Seller were untrue.” Defendant insists it was not required to act with due diligence because Plaintiff was unable to perform under the Contract because it could not convey good title. Defendant notes that sections 13.02 and 13.07 of the Contract entitles it to terminate the Contract and the return of its down payment upon a showing that Plaintiff was unable to convey title to the property in accordance with the Contract. Defendant also notes that the Second Amendment reduced the down payment amount by modifying Schedule C “so that the amount of’$350,000.00′ shall be deleted and the amount of ‘$250,000.00′ shall be substituted in lieu thereof.” Defendant further argues that summary judgment is premature because discovery has yet to be completed. The Court finds that Defendant’s arguments in opposition to the Plaintiff’s prima facie case are barred by collateral estoppel to the extent that they pertain to the issue of liability. It is well settled that collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Tel. Co., 62 NY2d 494 [1984]; see Stewart Family LLC v. Stewart, 184 AD3d 487 [1st Dept 2020]). “Collateral estoppel comes into play when four conditions are fulfilled: ‘(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits’” (Stewart Family LLC, 184 AD3d 487). In the instant matter, the issues of whether the 1983 Appropriation was a Permitted Exception and if Defendant waived its right to terminate the contract were previously determined by this Court’s prior Order. This Court initially determined in the prior action that the relevant provisions of the Contract were unambiguous and conclusively established a defense as a matter of law. The Court specifically determined, among other things, that the 1983 Appropriation was within Permitted Exception 12, and that Defendant waived its arguments that the Appropriation rendered the title unmarketable. The Court finds that the Defendant had a full and fair opportunity to litigate the issues in the prior proceeding as he presents the same arguments in opposition to Plaintiff’s prima facie case. Defendant continues to argue that the permitted exceptions are ambiguous and that the 1983 Appropriation does not fall within any of the permitted exceptions. Moreover, this Court’s dismissal of Defendant’s prior action was clearly a judgment on the merits of that case as “the documentary evidence utterly refute[d] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (see Furman v. Wells Fargo Home Mtge., Inc., 105 AD3d 807 [2d Dept 2013] citing Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002]). Accordingly, Defendant is collaterally estopped from arguing that 1983 Appropriation was not within a Permitted Exception or that the title to the subject property as agreed upon by the parties is unmarketable as he waived this particular argument. In addition, even if it was determined that Defendant did not waive its argument that Plaintiff is unable to convey marketable title to the subject property as described in the Contract, Defendant fails to rebut Plaintiffs claims that it can convey marketable title because the 1983 Appropriation is of public record and within the Permitted Exceptions. The Court finds nothing on this record that the 1983 Appropriation included within the Permitted Exceptions prohibits Plaintiff from conveying marketable title. Any restriction to Defendant’s ownership rights or access to the portion of the land taken by the 1983 Appropriation does not make the subject property unmarketable (see Laba v. Cary, 29 NY2d 302 [1971]). Based upon the Court’s findings, Plaintiff is entitled to summary judgment and a declaration that it is entitled to an award of liquidated damages as defined by the parties’ Contract. It is well settled that “a purchaser who, without breach on the part of the seller, defaults on a real estate contract without lawful excuse cannot recover her down payment (Rivera v. Konkol, 48 AD3d 347 [1st Dept 2008] citing Lawrence v. Miller, 86 NY 131 [1881]). Moreover, an award of liquidated damages as agreed to by the parties will be granted notwithstanding the seller’s actual damages (see Barton v. Lerman, 233 AD2d 555 [3d Dept 1996]). The parties in this matter agreed in Paragraph 13.04 of the Contract, in relevant part, that “[n]otwithstanding anything to the contrary contained herein, if Purchaser shall default in the performance of its material obligations under this contract,…the sole remedy of Seller shall be to retain the Downpayment (including all Additional Deposits under Schedule C herein) as liquidated damages for all loss, damage and expense suffered by Seller,….” Defendant’s suggestion that an award of liquidated damages to the Plaintiff would be inequitable because the Plaintiff will receive a windfall is without merit because the parties unambiguously agreed to and defined the amount of liquidated damages to be awarded upon a breach (Barton, 233 AD2d 555). It is undisputed on this record that Defendant paid a total of $2,555,000 toward the purchase of the subject Property. These payments included the initial deposit, additional deposits, and adjournment payments commencing November 2, 2017 and ending on February 3, 2020. This Court’s interpretation of the parties’ Contract along with the three-amendments to the contract of sale finds that all of the payments made by the Defendant during this time period are included as liquidated damages as defined by the Contract. Accordingly, Plaintiffs application for a declaration that it is entitled to retain the down payment including the funds remaining in escrow is granted as Defendant failed dispute Plaintiff’s allegation that it fully and completely performed its obligations under the Contract up until the Defendant’s breach as alleged in the Verified Complaint. Finally, Defendant’s suggestion that Plaintiff’s application for an order granting summary judgment is premature because discovery has not been completed is without merit. It is well settled that “[t]he mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to defeat to deny such a motion” (Flores v. City of New York, 66 AD3d 599 [1st Dept 2009]). Defendant was able to submit facts “essential to justify opposition [to the motion]” and does not provide any information to suggest what facts may be unavailable at this time that may be disclosed at a deposition (Jeffrey v. DeJesus, 116 AD3d 574 [1st Dept 2014]). In light of the foregoing, it is hereby ORDERED AND ADJUDGED that Plaintiff’s application seeking summary judgment is granted in its entirety in accordance with the Court’s findings hereinabove; and it is further ORDERED AND ADJUDGED that Plaintiff’s application for an order declaring that it its entitled to keep the down payment and additional payments as liquidated damages in accordance with the Contract is granted. Accordingly, the remaining funds currently being held in escrow in the amount of $1,926,084.73, plus any accrued interest thereon, shall be released to Plaintiff as an award of liquidated damages. The foregoing shall constitute the decision and order of this Court. Dated: April 4, 2022
