Lifshitz v. Wilhelm

2024 NY Slip Op 33070(U)

Opinion

Lifshitz v Wilhelm

2024 NY Slip Op 33070(U)

September 4, 2024

Supreme Court, Kings County Docket Number: Index No. 120/2022 Judge: Leon Ruchelsman

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 09/03/2024 11:36 AM INDEX NO. 120/2022 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/03/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 .;..-'-·-·----- -- ·---· -·----.--.- ------·---- - ·--·---·-x BENJAMIN LIFSHITZ and REBECCA KASHANIAN, Plaintiff, Deci~ion and brdet

- against,... Index No. 120/2022

LEVI WILHELM, MORDECHAI GURARY a/k/a MOTTY GURARY, ZALMAN WILHELM, BNOS MENACHEM, INC., JOHN DOES 1:-10 and ,ABC CORPORATIONS 1:....10,

Defendant s, S $ptember 4 , 20 2 4 - - - - ...... - - - - ----- -- -------------- X PRESENT: HON, LEON RUCHELSMAN Motion seq. #10 & #11

The defendant s have moved seeking to vacate a restrainin g order filed in this case. The plaintiff s have. moved pursuant to CPLR §2221 seeking to reargue a decision and order dated July 25, 2024 ·which granted the defendant s summary judgement . ·The motions have been opposed respectiv ely. Pap$rs. were submitted by the parti$s and arguments held. After reviewing all the arguments this court now makes the following determina tion.

The facts haYe been adequately recounted in prior orders and need not be repeated here.

Cori.clUsio ns of Law

A motion to teargue must be based upo:n the fact the court

overlooked or misappreh ended fact or law or for some other reason mistakenly arrived at in its earlier ciecision (Deutsche Bank

National Trust Go., v. Russo, 170 AD3d 952, 96 NYS3d 617 [2d Dept., 2019]),

Article 21 of the contract is entitled "Title Examinatio n;

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FILED: KINGS COUNTY CLERK 09/03/2024 11:36 AM INDEX NO. 120/2022 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/03/2024

Seller's Inability to Convey; Limitations of Liability" (see, Residential Contract of :sale, '3!21 [NYSCEF Doc. No. 59] l . Article 21(a) first states that "purchaser shall order an examination of title in respect .of the Premises .front a title cO:tripany licensed or authorized to issue title insurance by the New York State Insurance Department or any agent for such title company promptly

after the execution of this contract or, if this contract is . .

subject to the mortgage continqehty set forth in paragraph 8, after a mortgage commitment has been accepted by Purchaser. Purchaser shall cause a copy of the title report and o.f ahy additions thereto to be delivered to the a:ttorney(s) for Seller promptly after receipt thereof" {id). Further, Paragraph 8, which had not been deleted from the contract rE::quired the purchaser to provide a commitment letter from a lender within forty-five days of executing the contract.

Thus, Article 21(a), which has never been the focus of any attention in this case requires the plaintiff to satisfy conditions before examination of the sel.ler' s obligations. Further, the contract's insistence that the buyer's obligations are satisfied befOre the seller's obligations is consistent with a common sense approach to the sale of property. The buyer must first demonstrate it has the ijbility to purchase the property. Tf. that obligation cannot be satisfied. then there is. no need for the selle.r to att:em:pt to engage in his. or h.er obligations. There

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FILED: KINGS COUNTY CLERK 09/03/2024 11:36 AM INDEX NO. 120/2022 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/03/2024

is little sense requiring a seller to complete its obligation s when the other party to the contract, namely the buyer, is incapable of completin g the transactio n, Indeed, the court first addressed the buyer's obligation s in the prior decision a:rtd concluded the bi.iyer had failed to secure a valid commitmen t lE:!.tter from a lending institutio n as required under the contract. That was not just a mere pre-condi tion to :satisfy a cause of action for specific performan ce but a contractu al pre-condi tion and requirE:!.men :t:. While it is true that most of the litigation in this lawsuit focused upon the se·ller; s obligation s of Article 21(b) that does not mean there was somehow a waiver of anteceden t requireme nts on the part of the buyer that were never satisfied . 'rherefdre; notwithsta nding any arguments about law of the case o:r the court reversing its own understan ding, neither of which are compelling , the prior decision finally demonstra ted that there was really no basis to even consider the seller's obligation s without first examining the buyer's. Since the buye:r failed to satisfy its obligation s there is really nothing more for the court to consider. The buyer cannot secure summary judgement and moreover, that failure absolved the seller of its requireme nts. In truth, these are the very arguments presented by the defendant s consisten tly throughou t this litigation . The court initially rejected them to afford the buyer an opportuni ty to prevail upon its claims. The discovery process .afforded the

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FILED: KINGS COUNTY CLERK 09/03/2024 11:36 AM INDEX NO. 120/2022 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/03/2024

buyer. an o.pp·ort1,mity t_o ende:_avor t9 so prevail. The buyetr' s: inabi_lity t9 do _~o ess.eptially me.ans there are no questions of. fact the seller had the ability to cancei the contract. It makes little. sense denying ._the seller the righ:t to c;;1.ncel the contra-ct even where the buyer has failed to satisfy its obligations. Although th.e court once again engageci in an :anci:lysi"s of Article

-21(b)- that ;exercise was not.. ~n error. It rna:y have .been s 1.iper fl uous ,. however, there has been no demonstratio n th.e buyer

has betm ab.l".e to satis.fy its ..obiigation:.s. under the i::ontr:c;i.ct to theo. consiq.er tn.e sellep:' s ob.ligations. Therefore, the motion

seeking rea.tgument is denied.

Further, the motion see._king tq yacat$ t_he- preliminary

injuriction ordered on July 7, 2022 is granted. Likewise, the ·motion seeking to vacate the· ord.~r directing the ,sheriff to padlo.¢k th,.e- ·property is· grant_ed, The injuncti.ort is herebY; vaca_ted and the sheri,ff is directed to remove any pad.lo.ck. to the _property. The d.efendants may exercise .any and. al,l rights in the ~ubject pr6perty.

So ordered~

ENTER:

DATED: September 4, ~024

Brooklyn N.Y. H~ch.~ls rrran_ JSC

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