19-740 28th Highline Associates, L.L.C. v. Roache
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of September, two thousand twenty.
PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
28th Highline Associates, L.L.C.,
Plaintiff-Counter-Defendant-Appellee,
v. 19-740
Iain Roache,
Defendant-Counter-Claimant-Appellant.
_____________________________________
FOR PLAINTIFF-COUNTER-DEFENDANT-APPELLEE: EMILY S. REISBAUM, Clarick Gueron Reisbaum LLP, New York, NY.
FOR DEFENDANT-COUNTER-CLAIMANT-APPELLANT: IAIN ROACHE, pro se, Menerbes, Luberon, France. Appeal from a judgment of the United States District Court for the Southern District of
New York (Sweet, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Iain Roache, proceeding pro se, appeals the district court’s judgment on the
pleadings in favor of Appellee, 28th Highline Associates, L.L.C., which alleged that Roache
breached a real estate contract to buy a luxury condominium in New York City when he failed to
timely close and pay the remaining balance. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal, to which we refer
only as necessary to explain our decision to affirm.
In December 2015, Roache signed a contract to purchase the condominium apartment, a
storage unit, and a parking space in an under-construction building in Manhattan for $10,565,000.
Pursuant to the contract, Roache deposited 20% of the purchase price – $2,113,000 – in escrow.
The parties agreed that time was of the essence with respect to Roache’s obligations to pay the
balance on the closing date; that failure to pay constituted a default and, upon notification, Roache
would have 30 days to cure the default; and that Appellee could, in its sole discretion, cancel the
contract and retain the deposit as liquidated damages if Roache failed to cure the default. The
contract also contained provisions stating that the written agreement constituted the entire
agreement and that Roache did not rely on oral representations made by Appellee or its agents
except as specified in the agreement.
Appellee subsequently scheduled a closing date in July 2017, and Roache sought an
adjournment to a “mutually agreeable date and time no later than August 23, 2017 at 2:00 p.m.”
2 (pursuant to his contractual right to seek one 30-day adjournment). Supp. App’x at 62. The
closing never occurred, and Appellee sent Roache a notice of default in November 2017. After
negotiations to schedule a new closing date broke down, Appellee cancelled the contract in January
2018 and brought this suit, seeking release of the deposit from escrow. Roache, through counsel,
answered the complaint and asserted counterclaims of anticipatory repudiation and fraudulent
inducement. Both parties cross-moved for judgment on the pleadings. The district court granted
Appellee’s motion and denied Roache’s motion.
This Court reviews de novo a district court’s decision to grant judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c), construing the allegations in the light most
favorable to the non-moving party. Latner v. Mount Sinai Health Sys., Inc., 879 F.3d 52, 54 (2d
Cir. 2018). Judgment on the pleadings is appropriate where the movant has established “that no
material issue of fact remains to be resolved and that [the movant] is entitled to judgment as a
matter of law.” Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990) (internal
quotation marks omitted). In determining a Rule 12(c) motion, the district court may consider
“any written documents attached to” the pleadings, “materials incorporated in [the complaint] by
reference,” and “documents that, although not incorporated by reference, are integral to the
complaint.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (internal
quotation marks omitted). Under New York law, “the initial interpretation of a contract is a matter
of law for the court to decide.” Alexander & Alexander Servs., Inc., v. These Certain
Underwriters at Lloyd’s, London, 136 F.3d 82, 86 (2d Cir. 1998) (internal quotation marks
omitted).
Here, an independent review of the record and relevant case law reveals that the district
3 court properly granted Appellee’s motion, denied Roache’s motion, and entered judgment in
Appellee’s favor. As the district court explained in its thorough opinion, Roache defaulted under
the unambiguous terms of the contract by failing to timely close, and Appellee was therefore
entitled to cancel the contract and retain the deposit.
Roache’s arguments on appeal are meritless. First, the contract specifically stated that
time was of the essence with respect to Roache’s obligations, including his obligation to timely
pay the balance. See Bardi v. Estate of Morgan, 61 A.D.3d 625, 625 (2d Dep’t 2009) (“Contrary
to the plaintiff’s assertion that time was not of the essence due to the fact that the terms of sale
only provided that the closing date would be ‘on or before 9/15/06,’ which language has been held
not to be clear and unequivocal so as to render time of the essence, . . . the terms of sale provided
that ‘time is of the essence with respect to the Closing Date as to the purchaser only.’ Therefore,
the contract clearly expressed that time was of the essence[.]”).
Second, although Roache argues that Appellee waived its right to cancel the contract by
continuing to negotiate a new closing date after the default, the contract expressly provided that
Appellee had discretion to cancel the agreement based on such a default, and that “[a]ny failure
by either party hereto to insist upon the strict performance by the other party of any of the
provisions of this Agreement shall not be deemed a waiver of any of the provisions hereof.” Supp.
App’x at 28. No written amendment concerning a later closing date was ever signed by the
parties.
Third, Roache’s assertion that Appellee was not willing and able to close is unsupported
by any specific factual allegations and belied by the documents submitted with the pleadings
(including Appellee’s initial notice scheduling closing in July 2017).
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19-740 28th Highline Associates, L.L.C. v. Roache
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of September, two thousand twenty.
PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
28th Highline Associates, L.L.C.,
Plaintiff-Counter-Defendant-Appellee,
v. 19-740
Iain Roache,
Defendant-Counter-Claimant-Appellant.
_____________________________________
FOR PLAINTIFF-COUNTER-DEFENDANT-APPELLEE: EMILY S. REISBAUM, Clarick Gueron Reisbaum LLP, New York, NY.
FOR DEFENDANT-COUNTER-CLAIMANT-APPELLANT: IAIN ROACHE, pro se, Menerbes, Luberon, France. Appeal from a judgment of the United States District Court for the Southern District of
New York (Sweet, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Iain Roache, proceeding pro se, appeals the district court’s judgment on the
pleadings in favor of Appellee, 28th Highline Associates, L.L.C., which alleged that Roache
breached a real estate contract to buy a luxury condominium in New York City when he failed to
timely close and pay the remaining balance. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal, to which we refer
only as necessary to explain our decision to affirm.
In December 2015, Roache signed a contract to purchase the condominium apartment, a
storage unit, and a parking space in an under-construction building in Manhattan for $10,565,000.
Pursuant to the contract, Roache deposited 20% of the purchase price – $2,113,000 – in escrow.
The parties agreed that time was of the essence with respect to Roache’s obligations to pay the
balance on the closing date; that failure to pay constituted a default and, upon notification, Roache
would have 30 days to cure the default; and that Appellee could, in its sole discretion, cancel the
contract and retain the deposit as liquidated damages if Roache failed to cure the default. The
contract also contained provisions stating that the written agreement constituted the entire
agreement and that Roache did not rely on oral representations made by Appellee or its agents
except as specified in the agreement.
Appellee subsequently scheduled a closing date in July 2017, and Roache sought an
adjournment to a “mutually agreeable date and time no later than August 23, 2017 at 2:00 p.m.”
2 (pursuant to his contractual right to seek one 30-day adjournment). Supp. App’x at 62. The
closing never occurred, and Appellee sent Roache a notice of default in November 2017. After
negotiations to schedule a new closing date broke down, Appellee cancelled the contract in January
2018 and brought this suit, seeking release of the deposit from escrow. Roache, through counsel,
answered the complaint and asserted counterclaims of anticipatory repudiation and fraudulent
inducement. Both parties cross-moved for judgment on the pleadings. The district court granted
Appellee’s motion and denied Roache’s motion.
This Court reviews de novo a district court’s decision to grant judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c), construing the allegations in the light most
favorable to the non-moving party. Latner v. Mount Sinai Health Sys., Inc., 879 F.3d 52, 54 (2d
Cir. 2018). Judgment on the pleadings is appropriate where the movant has established “that no
material issue of fact remains to be resolved and that [the movant] is entitled to judgment as a
matter of law.” Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990) (internal
quotation marks omitted). In determining a Rule 12(c) motion, the district court may consider
“any written documents attached to” the pleadings, “materials incorporated in [the complaint] by
reference,” and “documents that, although not incorporated by reference, are integral to the
complaint.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (internal
quotation marks omitted). Under New York law, “the initial interpretation of a contract is a matter
of law for the court to decide.” Alexander & Alexander Servs., Inc., v. These Certain
Underwriters at Lloyd’s, London, 136 F.3d 82, 86 (2d Cir. 1998) (internal quotation marks
omitted).
Here, an independent review of the record and relevant case law reveals that the district
3 court properly granted Appellee’s motion, denied Roache’s motion, and entered judgment in
Appellee’s favor. As the district court explained in its thorough opinion, Roache defaulted under
the unambiguous terms of the contract by failing to timely close, and Appellee was therefore
entitled to cancel the contract and retain the deposit.
Roache’s arguments on appeal are meritless. First, the contract specifically stated that
time was of the essence with respect to Roache’s obligations, including his obligation to timely
pay the balance. See Bardi v. Estate of Morgan, 61 A.D.3d 625, 625 (2d Dep’t 2009) (“Contrary
to the plaintiff’s assertion that time was not of the essence due to the fact that the terms of sale
only provided that the closing date would be ‘on or before 9/15/06,’ which language has been held
not to be clear and unequivocal so as to render time of the essence, . . . the terms of sale provided
that ‘time is of the essence with respect to the Closing Date as to the purchaser only.’ Therefore,
the contract clearly expressed that time was of the essence[.]”).
Second, although Roache argues that Appellee waived its right to cancel the contract by
continuing to negotiate a new closing date after the default, the contract expressly provided that
Appellee had discretion to cancel the agreement based on such a default, and that “[a]ny failure
by either party hereto to insist upon the strict performance by the other party of any of the
provisions of this Agreement shall not be deemed a waiver of any of the provisions hereof.” Supp.
App’x at 28. No written amendment concerning a later closing date was ever signed by the
parties.
Third, Roache’s assertion that Appellee was not willing and able to close is unsupported
by any specific factual allegations and belied by the documents submitted with the pleadings
(including Appellee’s initial notice scheduling closing in July 2017).
4 Fourth, Roache’s fraudulent inducement claim is barred by the express provisions of the
contract disclaiming any reliance on oral representations. 1 See Aetna Cas. & Sur. Co. v. Aniero
Concrete Co., 404 F.3d 566, 575–76 (2d Cir. 2005) (stating that a disclaimer that is sufficiently
specific “destroys the allegations in the plaintiff’s complaint that the agreement was executed in
reliance upon . . . contrary oral representations” (quoting Danann Realty Corp. v. Harris, 5 N.Y.2d
317, 320–21 (1959))). To the extent Roache argues that he is not a sophisticated businessman
and thus not subject to those provisions, he is incorrect. Although the “specificity requirement
[of the disclaimer] is further relaxed when the contracting parties are ‘sophisticated business
people,’” id. at 576, the disclaimer here is sufficiently specific on its face. Compare Supp. App’x
at 25 with Danann, 5 N.Y.2d at 320 (holding that a similar disclaimer barred a fraudulent
inducement claim without discussion of the level of sophistication of the parties). Further, even
if it could be argued that Roache himself was not sophisticated, the record demonstrates that he
was represented by New York counsel when negotiating and signing the agreement.
Finally, allowing Appellee to retain the deposit is not inherently unfair. To the contrary,
such a remedy is consistent with well-established New York law and the unambiguous terms of
the contract, which specifically disclaimed any challenge to Appellee’s right to retain the deposit
as liquidated damages. See Uzan v. 845 UN Ltd. P’ship, 10 A.D.3d 230, 236–40 (1st Dep’t 2004).
We have considered all of Roache’s remaining arguments and find them to be without
1 Prior to oral argument, Roache filed a motion to provide supplemental information to the Court that he wished to discuss at argument, and the panel allowed Roache to refer to the information. See Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (explaining that the special “solicitude afforded to pro se litigants takes a variety of forms”). Nevertheless, in addition to the fact that this Court generally “will not consider new evidence absent extraordinary circumstances,” Munn v. Hotchkiss Sch., 795 F.3d 324, 330 (2d Cir. 2015) (internal quotation marks omitted), which are not shown here, those materials are altogether irrelevant in light of the contractual provision that disclaimed Roache’s reliance on Appellee’s representations beyond the four corners of the agreement.
5 merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court