The following numbered papers 64 to 117 read on this: (1) motion by Landstar Title Agency Inc for an order pursuant to CPLR §3211(a)(7) dismissing plaintiffs’ complaint; (2) cross-motion by plaintiffs for an order pursuant to CPLR §3212 granting plaintiffs summary judgment on their first amended complaint as against defendant Dragisa Fljankovic; and (3) cross-motion by Dragisa Fljankovic (“Fljankokic”) for an order (a) dismissing plaintiffs’ complaint, (b) granting summary judgment on its counterclaims, and (c) directing the parties to appear at a disclosure conference in the event this court denies defendant’s complaint PAPERS NUMBERED Notice of Motion, Affidavit, Exhibits EF No: 64-78 Notice of Cross-motion, Affidavits, Exhibits EF No: 81-96 Notice of Cross-Motion, Affidavits, Exhibits EF No: 101-115 Affirmation in Reply EF No: 117 Upon the foregoing papers, it is decided that the (1) motion by Landstar Title Agency Inc for an order pursuant to CPLR §3211 (a)(7) dismissing plaintiffs’ complaint; (2) cross-motion by plaintiffs for an order pursuant to CPLR §3212 granting plaintiffs summary judgment on their first amended complaint as against defendant Dragisa Fljankovic; and (3) cross-motion by Dragisa Fljankovic (“Fljankokic”) for an order (a) dismissing plaintiffs’ complaint, (b) granting summary judgment on its counterclaims, and (c) directing the parties to appear at a disclosure conference in the event this court denies defendant’s complaint, is decided as follows: Plaintiff commenced the instant action on October 21, 2022. On June 29, 2020, Plaintiffs executed a Residential Home Improvement Agreement with residential solar energy company Sunnova, pursuant to which Sunnova was to install solar panels and a solar power system at plaintiffs’ residence located at 162-04 84th Street in Howard Beach, New York (the “property”). The Sunnova Contract contained a Loan and Security Agreement, where Plaintiffs agreed to finance the total cost of the project, $38,294.00, over a term of 25 years, with monthly payments and a fixed interest rate of 4.30 percent. As part of the Loan and Security Agreement, plaintiffs granted a security interest in the solar system to secure payment of all amounts that are due for Sunnova. As part of the Solar Agreement, the Purchase Disclosure Form provided that Sunnova “will file a fixture filing or State of New York UCC Financing Statement Form (UCC-1) on the system. The UCC-1 is a public filing providing notice that [Sunnova] has a security interest in the personal property compromising the System, but it not a lien on [the] real property.” On May 9, 2022, Plaintiffs entered into a Residential Contract of Sale pursuant to which they agreed to sell the property to defendant Fljankovic. Pursuant to the executed Contract Rider accompanying the Contract of Sale, defendant Fljankovic warranted that he had “reviewed the sellers solar panel lease and agree[d] to submit an application and assume all of the sellers obligations under said lease.” Fljankovic had further agreed to submit their application for assignment of the lease within 10 days following the execution of the sale contract. The Sale Contract reads in pertinent part: 2. Personal Property This sale also includes all fixtures and articles of personal property now attached or appurtenant to the premises, unless specifically excluded. Seller represents and warrants that at Closing they will be paid for and owned by Seller, free and clear of all liens and encumbrances. 28(g). Miscellaneous Each part shall, at any time and from time to time, execute, acknowledge where appropriate and deliver such further instruments and documents and take such other action as may by reasonably requested by the other in order to carry out the intent and purpose of this contract. This subparagraph shall survive Closing. However, it is alleged that defendant Fljankovic took possession of the property but refused to accept the transfer of the Sunnova Contract. In fact, defendant Fljankovic has submitted an Answer dated February 10, 2023, in which he admits that he has “taken possession of the subject property, has never made payment for the cost of the solar panel installation, and has refused to accept a transfer of the solar system purchase agreement.” Plaintiffs now seek an order granting summary judgment as against defendant Fljankovic and defendant Fljankovic seeks an order, inter alia, dismissing plaintiffs’ complaint. The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law (see, Giuffrida v. Citibank Corp., 100 NY2d 72 [2003]; see also Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Only when the movant satisfies its prima facie burden will the burden shift to the opponent “to lay bare his or her proof and demonstrate the existence of triable issues of fact” (see, Alvarez, 68 NY2d at 324; see also, Zuckerman v. City of New York, 49 NY2d 557 [1980]; Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]). However, failure to make prima facie showing of entitlement to judgment requires denial of the motion, regardless of the sufficiency of the opposing papers. When the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 NY2d 8 [1960]; Rebecchi v. Whitmore, 172 AD2d 600 [1991]). “To recover damages for breach of contract, a plaintiff must demonstrate the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach.” (Klein v. Signature Bank, Inc., 204 AD3d 892 [2d Dept 2022]). “The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct.” Gutierrez v. Gov’t Emps. Ins. Co., 136 AD3d 975 [2d Dept 2016]). The Courts have held that to prevail on an unjust enrichment claim, the Plaintiff must show: (1) the other party was enriched, (2) at that party’s expense, and that “it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered.” (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173 [2011]). It is also well settled that “[t]he elements of a cause of action based upon promissory estoppel are a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise.” (Williams v. Eason, 49 AD3d 866 [2d Dept 2008]). In order to sustain a claim for conversion, “‘a plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff’s rights’” (Nat’l Ctr. for Crisis Mgmt., Inc. v. Lerner, 91 AD3d 920 [2d Dept 2012]). To prevail on a claim of fraudulent inducement, it must be shown that there was “a knowing misrepresentation of material present fact, which [was] intended to deceive another party and induce that party to act on it, resulting in injury.” (Tsinias Enterprises Ltd. v. Taza Grocery, Inc., 172 AD3d 1271, 101 NYS3d 138 [2d Dept 2019]). With respect to defendant Landstar Title Agency Inc’s motion. Landstar’s motion is denied as moot in as much as plaintiff has voluntarily discontinued the action as against Landstar Title Agency Inc. (See NYSCEF Doc 97). With respect to plaintiffs’ cross-motion, plaintiffs submit, inter alia, the affidavit of Christopher Meo and Deanna Collelo. Both plaintiffs deposed that “at all times leading to the Closing of the Property, and thereafter, Defendant Dragisa was aware of the Sunnova Agreement, the necessity of the assignment of the Sunnova Agreement as part of the sale of the Property, and its obligations with respect to the assignment of the Sunnova Agreement, including that Defendant Dragisa was required to submit an application to Sunnova, and see through Sunnova’s approval process.” Plaintiffs were “entirely compliant in assisting Defendant Dragisa with the process of assigning the Sunnova Agreement to Defendant, by contacting Sunnova, ascertaining a case number, and obtaining and providing Defendant Dragisa with Sunnova’s application.” Plaintiff further averred that “at no point prior to the closing of the sale of the Property did Defendant Dragisa, or anyone on its behalf, object to the Sunnova Agreement, or the necessity of the assignment of the Sunnova Agreement to itself; nor were there any proposals to remove the solar panel system installed on the Property prior to the closing or otherwise; and Defendant Dragisa executed the aforementioned Contract and Rider with the full and undeniable knowledge of the existence of the Sunnova Agreement and solar panel system existing on the Property.” Plaintiffs also deposed that they continue to pay costs related to the Sunnova Agreement while defendant Fljankovic refuses to compensate plaintiffs for the costs related to the Sunnova Agreement and refusing to assign thereof to itself, all the while using and benefitting from the use of the Sunnova solar system. Plaintiffs also submit the affidavit of Ramona Persaud dated September 15, 2023. Ms. Persaud deposed that she was the title closer representing Landstar Title Agency Inc at the closing. Ms. Persaud averred that “schedule B-I, item five (5) of the title report had an exception for a UCC-1 Security Interest for Sunnova Solar, as secured party…The UCC-1 Security Interest was brought to the attention of the attorneys at the closing table.” Ms. Persaud further averred that she recalls that attorney for plaintiffs and the attorney for the purchaser Fljankovic “discussing the Solar Panel Agreement and that the buyer would have the assignment process completed prior to the sellers vacating the premises under the post-closing occupancy agreement…The buyer, Dragisa Fljankovic, and his attorney assured [plaintiffs' attorney] that the solar panel assignment process would be completed after closing.” Plaintiffs further submits, inter alia, e-mail exchanges between plaintiffs’ attorney and defendant Fljankovic’s attorney providing, and of which defendant’s counsel admits, that the Sunnova Agreement was produced to defendant on June 21, 2022. Defendant Fljankovic contends that the Sunnova agreement was provided three days before the closing on June 24, 2023, and therefore were deprived of sufficient time to review the agreement. Whereas plaintiffs’ complaint and Ms. Persaud’s affidavit provide that the closing was actually held on June 28, 2023. Defendant also submits, inter alia, the Sunnova Agreement. The first page as provided shows that the total sale price of the Sunnova agreement is priced at sixty four thousand one hundred and three ($64,103.76) dollars and seventy six cents, of which, there shall be eighteen (18) monthly payments at one hundred and nine ($149.42) dollars and forty two cents and then, beginning in month nineteen (19), monthly payments of one hundred and nine ($149.42) dollars and forty two cents (if additional $9,956.44 payment is made) or monthly payments of two hundred and seven ($207.14) dollars and fourteen cents (if additional payment is not made). Thereafter the fifth page clearly sets out that the Sunnova Agreement encompasses a “loan and security agreement.” The Sunnova Agreement provides that the buyer has agreed “to finance all or portion of the Contract Price by entering into a Loan and Security Agreement with Creditor. Pursuant to the terms of the Loan and Security Agreement, [buyer] agree[s] to pay interest on the unpaid balance of that Contract Price at an interest rate of 3.99 percent.” Section 8 of the Warranty Agreement (attached with the Sunnova Agreement) further provides that plaintiffs’ “rights and obligations under [the] Warranty Agreement will be automatically transferred to any person who purchases or otherwise acquires the System from [plaintiff], to the extent allowed under the Loan and Security Agreement or this Warranty Agreement.” In opposition defendant submits his attorney’s affirmation contending that, inter alia: (1) plaintiff is in violation of the parol evidence rule; (2) defendant was unaware the Sunnova agreement condition for the closing until the eve of closing; (3) defendant believe the total sale price at closing included the solar panels; and that (4) summary judgment is premature. However, defendant’s attorney possesses no personal knowledge of the facts. “Such an affirmation has no probative value and is insufficient to defeat a motion for summary judgment,” and should be disregarded. (Gomes v. Revere Sugar Corp., 140 AD2d 582 [2d Dept 1988]; Chickering v. Colonial Life Ins. Co. of Am., 51 AD2d 566 [2d Dept 1976]). In the instant matter, plaintiff has set forth that the rider to contract of sale encompassed defendant’s requirement to review the Sunnova Agreement and, upon review, submit their application and assume all of plaintiffs’ obligations under said “lease.” As the rider contained the disputed agreement the parol evidence rule does not apply. Plaintiffs’ have also demonstrated that defendant was provided the Sunnova Agreement, that the title report had an exception for a UCC-1 Security Interest for Sunnova as the secured party, and that defendant had agreed to transfer plaintiff’s obligations under the Sunnova Agreement to itself (including on the day of the closing) but failed to and refuses to abide by its agreement. Plaintiffs have also demonstrated that they have continued to pay the Sunnova Agreement while defendant continues using and benefitting from the use of the Sunnova Solar System. As such, plaintiff has established its entitlement to summary judgment on its causes of action. In opposition defendant has failed to produce any affidavits or exhibits sufficient to raise a triable issue of fact. Moreover, as previously stated, a party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movants. (Jannetti, 131 AD3d 1209 [2015]). Here, defendant has failed to show that that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movants. Moreover, defendant’s counsel’s contention that defendant was not aware that the Sunnova Agreement was a security interest is unavailing. Although the rider mislabeled the Sunnova Agreement as a “lease,” defendant was aware that plaintiff required defendant to transfer onto itself all of plaintiffs’ obligation under the Sunnova Agreement for the closing of the property. Defendant was required to review the Sunnova Agreement prior to the closing which clearly set out the monthly payments to be made (on the first page) and that such agreement was a “loan and security agreement.” Additionally, the rider clearly provided that the Sunnova Agreement was excluded from “all fixtures and articles of personal property now attached or appurtenant to the premises,” therefore defendant’s counsel’s contention that defendant believed the purchase price to include the solar panel is unavailing. With respect to plaintiffs’ branch of cross-motion for specific performance as an alternative to a money judgment. It is well established that an aggrieved party is not entitled to specific performance wherein an award of money damages is adequate to compensate the aggrieved party. (Heung Rha v. Blangiardo, 189 AD3d 1098 [2d Dept 2020]; Post v. Mengoni, 198 AD2d 487 [2d Dept 1993]). Here, plaintiffs seek specific performance as an alternative to its request for money judgment. However, plaintiffs are not entitled to specific performance as they have set out that money judgment would be adequate compensation. Accordingly, it is hereby ORDERED, that defendant Landstar Title Agency Inc’s motion is denied as moot, it is further ORDERED, that plaintiffs’ motion for summary judgment as against defendant Dragisa Fljankovic is granted to the extent that plaintiff is entitled to money judgment, and an assessment of damages against defendant shall be held at the time the case is called for trial, and it is further ORDERED, that defendant Dragisa Fljankovic’s cross-motion for summary judgment is denied in its entirety, it is further ORDERED, that plaintiffs shall serve a copy of this order, with notice of entry, upon all parties within thirty days of the date of entry. This constitutes the decision and order of the Court. Dated: March 4, 2024
