Rokach v. Arlick

2025 NY Slip Op 31747(U)

• Court: New York Supreme Court, Kings County
• Decided: May 13, 2025
• Docket: Index No. 517273/23
• Status: Unpublished

Opinion

Rokach v Arlick 2025 NY Slip Op 31747(U) May 13, 2025 Supreme Court, Kings County Docket Number: Index No. 517273/23 Judge: Steven Z. Mostofsky 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. WILED: KINGS COUNTY CLERK 05/1 3/20 25 01:1 INDEX NO. 51727 3/202 3 8 Pi NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 05/13 /2025

At an IAS Term, Part 9 of the Supreme Court of the State of New York, held in and for the Count y of Kings, at the Courthouse, at 360 Adam s Street, Brooklyn, New York, on the 13_ day of May, 2025. PRE SEN T:

HON. STEVEN Z. MOST OFSK Y, Justice. ---------------- --- ------------------ --- --- --- --- --X DANIEL ROKACH, DECIS ION, ORDE R, AND JUDGMENT Plaintiff, -against- I Index No. 517273/23 JASON ARLIC K, Mot. Seq. Nos. 1-2 Defen dant. ---------------- --- ------ ------ --------- ------ --- --X

The following e-filed papers read herein: NYSC EF Doc Nos.: Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ _ _ _ 13-58; 62-98 Opposing Affid avits (Affinnations )_ _ _ _ _ _ _ _ _ _ 99-102 Affidavits/Affirmations in Reply _ _ _ _ _ _ _ _ _ _ _ 104-111

In this action for speci fic perfo rman ce of a contr act for I the sale of real prope rty, defen dant Jason Ar lick ("def endan t") move s for ( amon g other rel,ief) summ ary judgm ent I dismi ssing the comp laint and cance ling the under lying notice · of pende ncy, where as plain tiff Danie l Roka ch ("pla intiff ') cross -mov es for summ ary judgm ent on his cause of action for speci fic perfo rman ce (Mot. Seq. Nos. 1 and 2, respe ctivel y).

Background

This action arises out of plain tiffs contr act to buy defen dant's upsta irs unit, which 1s desig nated as Unit 2, Block 5496, Lot 1102 (the "Arli ck unit" ), of the two-u nit condo miniu m locate d at 1540 57 th Stree t in the Boro Park sectio n of Brook lyn, New York

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(the "con do") .1 Duri ng the relev ant time, nonp arty Josep h Richter ("Ric hter" ) owned the downstairs unit, which is designated as Unit 1, Bloc k 5496 , Lot 1101 (the "Ric hter unit"). 2 Also relev ant herei n is that plain tiff's contr act with defen dant conta ined a mortgage-contingency clause. 3

Before plain tiff could close on his purch ase of the Arlick unit in June 2023 ,4 plain tiff's title comp any point ed out that the cond o's by-laws requi red that the condo board (and, by exten sion, the cond o's "rem ainin g unit I owner," mean ing Richter) be afforded the right of first refus al to buy the Arlick unit. 5 Defe ndan t's coun sel, though ! disagreeing with the opini on of plain tiffs title company, decid ed to acco rd the condo (and, by extension, Richter) the right of first refus al for the Arlick unit. 6 Concurrently, however, defen dant' s coun sel set August 3, 2023 as the time- of-th e-ess ence closing date with plain tiff for the Arlick unit. 7 Nonetheless, plain tiff became apprehensive that Richter (on beha lf of the cond o boar d and as the cond o's "rem ainin g unit owne r") might exercise the right of first refus al for the Ar lick unit. To that end, on June 13, 2023 , plain tiff preemptively comm ence d the instant action against defen dant for specific perfo rman ce and filed a notice of pend ency , to ensure that no conv eyan ce of the Ar lick unit to Richter would occu r in the interim.

1 Plainti ff's "Cond omini um Unit~ Contra ct of Sale," dated as of May 30, 2019 (as amend ed) (the "plain tiff's contra ct") (NYSCEF Doc No. 21 ). 2 Condo minium Declar ation, dated June 10, 1998 (the "cond o declar ation" ), page 16 (Exhibit B to the condo declaration, Description of Units) (NYSCEF Doc No. 105). 3 Plainti ff's contra ct,§ 22. 4 There was a four-y ear delay before the execut ion and delive1y of plainti ff's contra ct of sale in May 2019 and propos ed closing in June 2023. the 5 By-La ws§ 7.2 (A)-(B)-(C), (D), and (E) (1)-(2), pages 32-34 (Exhibit D to the condo declar ation, By-La ws) (also part of NYSCEF Doc No. 105); See the undate d email from plainti ff's title compa ny, Madis on Title Agenc (NYSCEF Doc No. 3 8). y 6 Defense counsel's letter to Richter, dated June 23, 2023 (NYSCEF Doc No. 47). 7 Defense counse l's letter to plainti ff's transa ction counse l,

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Plai ntiff 's prem onit ion that Richter may exercise the right of first refu sal prov ed to be correct. In July 2023 , Rich ter exer cise d the right of first refu sal and exec uted a "fol low- form " cont ract with defe ndan t for the purc hase of the Ar lick unit. 8 While Rich ter was getting read y to buy the Arli ck unit, he was havi ng financial difficulty payi ng the mortgage debt on his own I unit. Two months prio r (in May 2023), the mortgage hold er on Rich ter's unit had commen ced a foreclosure actio n against it (the "Richter-unit fore clos ure" ). In Janu ary 2025, the I Rich ter-u nit foreclosure culminated in the sale of the Rich ter unit to nonp arty 1540 57 th Street, LLC, which is currently owned by nonp arty Simon Ganz ("Ga nz") . 9 Acc ordi ng to Ganz (in ,i 3 of his affidavit), he permitted Rich ter to lease the Richter unit (now rede sign ated as the "Ga nz unit") and to remain a boar d mem ber of the condo (now as Gan z's designee). 10 Meanwhile, defe ndan t and thereafter plai ntiff serv ed the insta nt mot ion and cros s- motion for sum mar y judg men t, respectively. The Court hear d oral argument on March 27, 2025 and rese rved decision.

Discussion 11

A defe ndan t selle r "mo ving for summary judg men t dismissing a cause of action for specific perf orm ance of a cont ract for the sale of real prop erty ... has the burd en of demonstrating the abse nce of a triable issue of I fact regarding whe ther the plai ntiff buye r was ready, willing, and able to clos e" (Point Hold ing, LLC v Crittenden, 119 AD3d 918,

8 Richt er's "Con domi nium Unit - Contr act of Sale," I dated as of July 5, 2023 (as amen ded) (NYSCEF 9 Notice of Sale in the Richter foreclosure action Doc No. 50). , dated Janua ry 9, 2025 ; Affid avit of Josep Marc h 18, 2025 , if 2;Aff idavi t of Simon Ganz h Richt er, dated ,date d Marc h 18, 2025, ,r,r 2-3 (NYSCEF Doc respectively). Nos. 79,10 1, and 102, 10 By-L aws § 2.7 ("Eac h Unit Owner shall designate ... one [l] mem ber of the Board of Mana Cond omin ium." ) (part ofNY SCEF Doc No. 105). gers of the 11 The recitation of the well-established summ ary-ju dgme nt stand ard of review is omitt ed from this Order in the interest of brevity. Decision and

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919 [2d Dept 2014 ]). "fu addition, the defe ndan t seller must demonstrate, prima facie, that the plain tiff buye r was in defa ult" (534 Flatb ush Holdings, LLC v Safa ris Props., LLC, 234 AD3d 732, 734 [2d Dept 2025 ]). Here, defe ndan t estab lishe d, prim a facie, that plain tiff was unab le to purc hase the Arlick unit in June 2023 beca use he lack ed a requisite loan commitment, as more fully set I forth in the margin. 12 To that end, defendant was entit led to (and did) resci nd plain tiff's contract purs uant to§ 22 there of by returning the latte r's downpayment. 13 According I ly, defe ndan t's moti on is granted, as more fully set forth in the decretal paragraphs belo w (see Ashk enaz i v Miller, I 90 AD3d 668, 670 [2d Dep t 2021]; Grunbaum, 153 AD3d at 1385). fu oppo sitio n to defe ndan t's motion and in supp ort of his own cros s-mo tion for summary judg men t for specific performance, plain tiff contends that Richter lost his right of first refusal (and henc e his cont ractu al capa city to buy the Arlick unit) upon the subs eque nt foreclosure of his own unit. Plain tiff's cont entio n is unav ailin g for two reasons; first, Ganz has designated Rich ter as a boar d member of the condo; seco nd and more fundamentally, Rich ter's prev ious ly exer cised right to purc hase the Arlick unit has nothing to do with his subs eque nt loss of status as the own er of his own (Ric hter' s) unit. All othe r issues not spec ifica lly addr esse d here in have been cons idere d by the Court and found to be eithe r without merit or acad emic. In light of defe ndan t's prev ious exercise of his right of resci ssion unde r § 22 of plain tiff's cont ract and mindful of the relevance unde r the circu msta nces of the conc ept of shal om bay it (here, peac e in the two-

12 Capit al M's "Pre-Approval Letter," dated June 2, 2023, to plaint iff generally stated that he met "the requirement for a loan" for the purch ase of the Arlick unit, but specif s ically cautioned that it did "not constitute a loan appro (NYSCEF Doc No. 29). val" 13 The escrow accou nt check, dated June 8, 2023, in the sum of $25,000 and made payab le to plaintiff Doc No. 32). (NYSCEF

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unit condo), an award of atto rney 's fees or any othe r mon etary relie f to eithe r part y is inappropriate.

Conclusion Accordingly, it is here by

ORDERED that in Seq. No. 1, defe ndan t's moti on is gran ted to the exte nt that (1) plai ntiff 's com plain t is dismissed in its entir ety with prej udic e and without costs or disbursements, and (2) the Notice of Pendency I , dated June 12, 2023 , filed against defe ndan t's unit loca ted at 1540 57th Street, Unit 2, Brooklyn, New Yor k 11219, Block I 5496, Lot 1102 (NYSCEF Doc No. 6), is here by stricken; and the rem aind er of defe ndan t's mot ion is denied; and it is further

ORDERED that in Seq. No. 2, plai ntiff 's cros s-mo tion is deni ed in its entirety; and ORDERED that defe ndan t's coun sel is directed to elec tron icall y serve a copy of this Decision, Order, and Judgment with noti ce of entry on plai ntiff 's counsel and to electronically file an affid avit ther eof with the Kings County Clerk. This constitutes the Decision, Order, and Judgmen t of the Court.

EN TER ,

. Mos tofs ky Justice, Supreme Court

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