Kattas v. Sherman

32 A.D.3d 496, 820 N.Y.S.2d 631

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 2006
• Status: Published

Opinions

In an action, inter alia, for a judgment declaring, among other things, that the defendant repudiated a contract for the sale of real estate dated April 25, 2002, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered May 26, 2004, which, upon an order of the same court dated January 13, 2004, granting the plaintiffs’ motion for summary judgment and denying the defendant’s cross motion to disqualify the plaintiff’s counsel, declared, inter alia, that the defendant had repudiated the contract, and directed the return of the plaintiffs’ down payment.

Ordered that the judgment is reversed, on the law, with costs, the motion for summary judgment is denied, the cross motion to disqualify the plaintiffs’ counsel is granted, and the order dated Januaiy 13, 2004, is modified accordingly.

The plaintiffs entered into a contract of sale with the defendant to purchase a house located in Cold Spring Harbor in the Town of Huntington. The contract required the defendant to obtain a letter in lieu of a certificate of occupancy (hereinafter the letter) since the premises predated the Building Code in the Town of Huntington. The plaintiffs allege that the defendant refused to obtain the letter and thereby anticipatorily repudiated the contract.

It is settled that summary judgment is unwarranted when, after the movant makes out a prima facie case, the opposing party demonstrates that there are material issues of fact which remain for trial (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Here it remains to be resolved whether or not the defendant anticipatorily repudiated the contract of sale, and consequently, whether the plaintiffs were entitled to cancel the contract of sale and receive a return of their down payment (see Cohen v Kranz, 12 NY2d 242 [1963]; Hegner v Reed, 2 AD3d 683 [2003]; Klein v Opert, 218 AD2d 784 [1995]). Accordingly, the plaintiffs were not entitled to summary judgment.

The defendant is correct that the counsel for the plaintiffs should have been disqualified. The plaintiffs’ counsel is a potential witness in the determination of the breach of contract issue, and was intimately involved in the failed purchase of the property. He dealt with the defendant directly during the latter’s application for the letter, and the defendant alleges that plaintiffs’ counsel failed to submit the application as they had previously agreed. In addition, the defendant conversed directly with the plaintiffs’ counsel via phone when the defendant indicated that he would obtain the letter after his alleged prior refusal to do so. Under these circumstances, the plaintiffs’ counsel became a witness with information about relevant and material facts and thus should have been disqualified (see Hoerger v Board of Educ. of Great Neck Union Free School Dist., 129 AD2d 659 [1987]; Pulichino v Pulichino, 108 AD2d 803 [1985]; North Shore Neurosurgical Group v Leivy, 72 AD2d 598 [1979]). Finally, under the facts of this case, there is no merit to the plaintiffs’ contention that the motion to disqualify was untimely (cf. Eisenstadt v Eisenstadt, 282 AD2d 570 [2001]) Schmidt, J.P., Santucci and Luciano, JJ., concur.