Shustik v 303 W. 116 St. LLC 2025 NY Slip Op 32468(U) July 14, 2025 Supreme Court, New York County Docket Number: Index No. 656695/2021 Judge: Emily Morales-Minerva 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. SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice -------------------X INDEX NO. 656695/2021 SHAI SHUSTIK, MOTION DATE 11/09/2024 Plaintiff, MOTION SEQ. NO. 003 - V -
303 WEST 116 ST. LLC, DECISION + ORDER ON MOTION Defendant. -------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 135,136,137,138,139,140,141,142,143,144,145,146,147,148,149,150,151,152,153,154,155, 156,157,158,159,160,162,163,164,165,166,167,168,169,182,183,184,185 were read on this motion to/for JUDGMENT-SUMMARY APPEARANCES:
Sylver & Richman LLP, New York, NY (Boris Sorin, Esq., of counsel), for plaintiff.
Kueker Marino Winiarsky & Bittens, LLP, New York, NY (Nicholas G. Yokos, Esq., of counsel), for defendant.
EMILY MORALES-MINERVA, J.S.C.
Plaintiff SHAI SHUSTICK (buyer) commenced this action
against defendant 303 WEST 116 ST. LLC (seller) for specific
performance of a contract for the sale of real property. Among
other things, seller answered and asserted counterclaims. Now,
by notice of motion (sequence no. 003), seller moves for an
order (1) granting seller partial summary judgment on the
amended counterclaim for breach of contract, (2) cancelling the
notice of pendency in this action, and (3) awarding seller
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 1 of 29 Motion No. 003
[* 1] sanctions against buyer for frivolous conduct (see CPLR § 3025;
CPLR § 3215; 22 NYCRR § 130-1.1) . 1
Buyer opposes the motion and cross-moves, by notice of
motion (sequence number unassigned), for leave to amend its
complaint, pursuant to CPLR § 3025, and for an order extending
the notice of pendency, pursuant to CPLR § 6513. Seller submits
opposition to the cross-motion.
For the reasons set forth below, the court (1) grants
seller's motion (seq. no. 004), in part, denying only seller's
application for sanctions against buyer; and (2) denies seller's
cross-motion as moot.
BACKGROUND
Defendant 303 WEST 116 ST. LLC is the owner and landlord of
a residential building known as 303 West 116th Street, New York,
New York (premises). On August 30, 2021, defendant, as seller,
and plaintiff SHAI SHUSTIK, as buyer, executed a contract of
sale for the real property wherein buyer agreed to pay seller
1 During oral argument on the subject motion, buyer, appearing by counsel, consented, on record, to the Court granting seller's application to amend its counterclaims pursuant to CPLR § 3025 (c); the Court granted, therefore, granted seller permission to amend the same (see NYSCEF Doc. No. 185, Transcript of Oral Argument, p 6, lines 6-14; see also CPLR § 3025 [c] [providing that "the court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances"]). The counterclaims, are therefore, deemed amended.
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[* 2] $2,750,000.00 in exchange for the premises (see New York State
Court System Electronic Filing System [NYSCEF] Doc. No. 002,
Complaint; see also NYSCEF Doc. No. 20, Contract of Sale, dated
August 30, 2021).
Pursuant to the contract, on the date of signing, buyer
deposited a requisite $275,000.00 downpayment into escrow
(escrow) (see Doc. No. 002, Complaint; see also NYSCEF Doc. No.
20, Contract of Sale). The contract scheduled the closing to
take place at the office of seller's counsel 45 days from August
30, 2021 (Thursday, October 14, 2021) "time being of essence"
(see NYSCEF Doc. No. 20, Contract of Sale, 115) . 2 The contract
also provided, if buyer -- "at least seven (7) days before the
date scheduled for closing" -- "shall [have] furnish[ed]
seller's attorney with any objections or exceptions to title,"
buyer retained "the right to cancel the contract if [seller did
not clear] all title objections [and to] be refunded the
downpayment" (emphasis added) (NYSCEF Doc. No. 20, Contract of
Sale, with document entitled "Additional 'Subject To'
Provisions" attached, at 1 R3) . 3
2 Paragraph 15 provides, "Closing date and Place. 'Closing shall take place at the office of Seller's Attorney at 2 PM o'clock on 40 days from date from Purchaser's attorney receipt of the fully executed contract and 5 days thereafter time being of the essence'" (emphasis in original) (id., at 1 15). 3 Paragraph R3 provides, "NOTICE OF EXCEPTIONS: Purchaser, at least seven (7) days before the date scheduled for closing, shall furnish seller's attorney with any objections or exceptions to title, which may have been returned by the title company or anyone examining title to the premises, and if it appears from such objections or exceptions that time will be required within which to remove the same, then, and in the event, seller shall have a
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[* 3] Pending the closing, on or about September 20, 2021, buyer
conducted a title report search of the real property. The
search revealed the property had "open minor alterations/permits
showing on the N.Y.C. Building Information System (BIS)" see
NYSCEF Doc. No. 001, Complaint, Ex. B, Title Report, dated
September 13, 2021). Thereafter, buyer conducted a second title
search, which revealed three open building permits with the New
York City Department of Buildings (DOB), and one pending permit
application (see NYSCEF Doc. No. 001, Complaint, Ex. c, Title Report with Permit Search, dated November 10, 2021).
Upon buyer sharing such results with seller, seller
referenced the parties' written agreement concerning removal of
violations (see NYSCEF Doc. No. 20, Contract of Sale, with
document entitled "Additional 'Subject To' Provisions" attached,
at 1 Rl3}. The subject contract provides -- if the real
property was subject to violation by ''any county, city, or
federal agency or department 11 buyer is prohibited from such
violation(s) as "an objection to title" unless seller fails "to
deposit with seller's counsel or buyer's title company, a sum
reasonable adjournment not more than forty (40) days within which to clear such objections or exceptions. Seller shall not be required to bring any action or proceeding or incur any expense to clear title. Purchaser has the right to cancel the contract if all title objections are not cleared by Seller, and shall be refunded the downpayment" (id., at 1 R3). 656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page4of 29 Motion No. 003
[* 4] sufficient to . . to remove such violation of record within
ninety (90) days from the date of closing of title" (id.) . 4
However -- if the estimated costs to removal of said
violations(s) were, in the sole opinion of seller more than
$500.00 -- seller could refuse to make such repairs; in that
event, seller would have the option of either (1) accepting
$500.00 from buyer and taking title of the real property without
any abatement or (2) rejecting title (id.). If buyer exercised
its right to reject title under such circumstances, seller would
then return buyer's downpayment without further obligation
(id.) .
Relying on this provision, seller declined to resolve the
open work permits and pending work permit, offering buyer
$500.00 (see NYSCEF Doc. No. 22, Email Exchange between counsel,
dated November 19, 2021; see also NYSCEF Doc. No. 002,
Complaint). Seller also informed buyer that, if "[buyer]
4 Paragraph Rl3 provides, "COST OF REMOVAL OF VIOLATIONS: Violations in any county, city, or federal agency or department which the seller is required to remove hereunder, shall not be an objection to title, provided seller shall deposit with his attorney or with the purchaser's title company, a sum sufficient to perform the work and provide the materials necessary to remove such violation of record within ninety (90) days from the date of closing of title . . . Seller reserves the right to refuse to make such a deposit should the estimated cost of such repairs in the sol[e] opinion of the seller exceed the sum of $500.00 in which event the purchaser may take title to the premises subject to said violations without any abatement in the purchase price, and receive an allowance of $500.00 or reject title. If title is rejected by purchaser, the sole obligation of the seller shall be limited to the return of the deposit made by purchaser under this contract, together with the net cost of the title deposit made by purchaser under this contract, together with the net cost of the title search and of a survey, if made" (id., at 1 R13).
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[* 5] exercises his right not to accept this condition, the seller
will return his downpayment and the contract shall become
cancelled" (NYSCEF Doc. No. 22, Email Exchange between counsel,
dated November 19, 2021).
However, buyer both refused the $500.00 and the cancelling
of the contract, including the return of the deposit. Buyer
requested to no avail that seller retain the downpayment and
close the open permits (NYSCEF Doc. No. 23, Letter, dated
November 21, 2021). Thereafter, the closing date came and went
without the parties completing the sale.
Then, on November 24, 2021, buyer commenced the instant
action against seller, seeking only specific performance of the
contract of sale see NYSCEF Doc. No. 002, Complaint). Buyer
also filed notice of pendency with the New York County Clerk
see NYSCEF Doc. No. 003, Notice of Pendency, dated November 23,
2021) .
Seller answered, asserting counterclaims for (1) breach of
contract against buyer and for (2) a declaration that the
contract is null and void, and (3) seeking damages in the amount
of buyer's downpayment, $275,000.00 (see NYSCEF Doc. No. 006,
Answer with Counterclaims). Seller reasons that buyer's failure
to close on October 14, 2021, without making any objections, in
accordance with the contract, constituted a default, as seller
was ready, willing, and able to close. Therefore, seller
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[* 6] argues, pursuant to the express language of the contract, it is
entitled to retain buyer's deposit on the sale.
Seller then moved, by notice of motion (seq. no. 001), for
an order of summary judgment against buyer (see NYSCEF Doc. No.
10, Seller's Motion for Summary Judgment). Buyer submitted
opposition, and cross-moved (no sequence number assigned) for an
order of summary judgment against seller, granting buyer
specific performance of the sale (see NYSCEF Doc. No. 27,
Buyer's Notice of Cross-Motion and in Opposition to Motion).
The court (N. Bannon, J.S.C.) denied both the motion and
cross-motion as premature without prejudice (see NYSCEF Doc. No.
73, Decision and Order, dated February 18, 2024). Thereafter,
the parties engaged in discovery.
In the meanwhile, the open permits resolved, and seller
essentially offered buyer a new closing date of June 11, 2024,
time is of essence (see NYSCEF Doc. No. 93, Open Permit Search,
dated April 04, 2024 [confirming that "there are no open permits
found on file in the Building Department"] and Doc. No. 93, Time
is of the Essence closing letter, dated April 11, 2024).
It is unclear if buyer responded directly to seller.
However, on April 25, 2024, buyer filed a motion, by order to
show cause (seq. no. 003), for an order staying the time is of
the essence closing (see NYSCEF Doc. No. 81, Buyer's Proposed
Order to Show Cause, declined to sign, dated April 30, 2024).
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[* 7] This court declined to sign such order, as buyer showed neither
an emergency nor authority upon which it was entitled to the
relief sought (id.).
Prior to the new closing date, on May 23, 2024, buyer's
counsel inspected the subject real property and observed
furniture in Unit #2 of the premises (see NYSCEF Doc. No. 114,
Affidavit of Buyer's Counsel). On that same day, buyer objected
to the same, expressing concern that Unit #2 "appeared to be
occupied" (id. ) .
However, seller resided in "Unit #2" and attributed the
furniture to seller's family members, contending the entire
premises would be delivered in the condition required, pursuant
to the contract (see id.). In this regard, the contract was
clear:
"At closing, Seller shall deliver the Premises in broom clean condition, vacant and free of leases or tenancies, together with keys to all Units within the Premises, except with respect to the following:
"Residential Unit #4, Monthly Rent $2,650.00, Month-to-Month Lease;
"Retail Tenant Lolo's Restaurant, Monthly Rent $5,300.00, 3/1/2021 - 2/28/2022
"Lolo's restaurant has one option to renew the lease for an additional 5-year term"
(emphasis added) (NYSCEF Doc. No. 20, Contract of Sale, with
First Amendment to Contract of Sale attached [providing,
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[* 8] "Paragraph RS of the Seller's Rider shall be deleted and
replaced with the [aforementioned] language"]; see also id.,
with document entitled "Additional 'Subject To' Provisions"
attached, at 1 R8) . 5 Thereafter, seller and buyer stipulated to a final
extension of the time is of the essence closing date to July 09,
2024, at 10:00 A.M. (see NYSCEF Doc. No. 84, Stipulation to
Extend Time is of the Essence Closing, dated June 04, 2024).
Therein, buyer "expressly agree[d] ," among other things, that
(1) he received notice of the time is of essence closing date,
that (2) he "waive[d] any objections" thereto; that (3) "there
shall be no further extensions of the closing of July 09, 2024,
at 10:00 AM; that (4) said new closing date "shall be a TIME IS
OF THE ESSENCE date;" and that (5) "no further notice for the
New Closing Date shall be required beyond this Stipulation"
(emphasis in original) (id.). 6
5 Paragraph RS provides, "DELIVERY OF POSSESSION: Seller agrees to deliver the premises broom clean and vacant at time of closing, except one tenant" (id.).
6 "WHEREAS, by Residential Contract of Sale dated August 30, 2021 ('Contract'), 303 WEST 116 th ST. LLC ('Seller') agreed to sell SHAI SHUSTIK ('Buyer') 303 West 116 th Street NY, NY 1-26 (Block 1943, Lot 128) ('Premises'); and
"WHEREAS, by notice dated April 11, 2024 ('Notice'), Seller [303 WEST 116 th ST. LLC] noticed a time is of the essence closing with respect to the Premises to be held on June 11, 2024 at 10:00 a.m. at the offices of Seller's [303 WEST 116 th ST. LLC] counsel ('Closing'); and
"WHEREAS, by e-mail dated June 4, 2024, SHAI SHUSTIK ('Buyer') counsel wrote to Seller's [303 WEST 116 th ST. LLC] counsel requesting that the Time is of the Essence Closing be delayed; and
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[* 9] A month later and only five days prior to the time-is-of-
essence closing date, buyer requested a walkthrough of the real
property to take place on July 05, 2024, at 2:00 P.M. (see
NYSCEF Doc. No. 97, Email Exchange between counsel). Seller
agreed to the walkthrough (see NYSCEF Doc. No. 89, Seller's
Statement of Undisputed Material Facts). On that date, counsel
for both parties attended, in person, on behalf of their
clients, but buyer did not appear in person (see id.; see also
NYSCEF Doc. No. 134, Buyer's Response to Statement of Material
Facts). The walkthrough concluded without buyer registered any
objections.
Two days before the scheduled closing, seller asked buyer
for 48 hours after the closing to remove personal property from
Unit #2 (NYSCEF Doc. No. 119, Email Exchange between counsel,
dated July 07, 2024). Buyer rejected seller's request but then
sought "to adjourn the closing" for purposes of performing an
"NOW, THEREFORE, for the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt of which is hereby acknowledged by and between the Seller [303 WEST 116 th ST. LLC] and Buyer [SHAI SHUSTIK]: "1. The foregoing recitals are hereby fully incorporated herein by reference . . . "3. In consideration for Seller's [303 WEST 116 th ST. LLC] agreement to this Stipulation to extend that Closing from June 11, 2024 to July 9, 2024 at 10:00 Am {"NEW TOE Closing"), Buyer [SHAI SHUSTIK] hereby expressly agrees to the following: "(i) that buyer [SHAI SHUSTIK] has received the Notice and waives any objections thereto; and (ii) there shall be no further extensions of the Closing beyond the New TOE Closing date, and (iii) the New TOE Closing shall be a TIME IS OF THE ESSENCE date, and (iv) no further notice for the New Closing Date shall be required beyond this Stipulation" (emphasis in original).
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[* 10] in-person "walk-through and close" (see NYSCEF Doc. No. 98 and
100, Email Exchanges between counsel, both dated July 08, 2024).
Seller rejected any further adjournment of the closing (see
Having been denied extra time to remove personal belongings
from Unit #2, on the same date, seller e-mailed buyer
photographs of Unit #2, appearing emptied of such items (see
NYSCEF Doc. No. 98, Email Exchange between counsel with
photographs attached, dated July 08, 2024). However, buyer
insisted on a final walkthrough, and the parties agreed to
schedule it for July 09, 2024, at 9:15 AM (see NYSCEF Doc. No.
100, Email Exchange between counsel, dated July 08, 2024). In
making such agreement, seller reminded buyer that the time-is-
of-essence closing was scheduled to take place immediately
thereafter at the office of seller's counsel at 10:00AM (id.).
Once again, at the time of the walk through, buyer did not
appear in person. Instead, buyer's counsel Brian A. Campbell,
Esq. (not of record), and buyer's friend non-party Claudia
Rodriguez conducted the walk through on buyer's behalf (see
NYSCEF Doc. No. 130, Affirmation of Claudia Rodriguez; see also
NYSCEF Doc. No. 87, Affirmation of Brian A Campbell, Esq.).
Buyer's friend observed three mattresses in the hallway outside
of Unit #2 and leftovers in said unit's refrigerator (see NYSCEF
Doc. No. 130, Affirmation of Claudia Rodriguez [emphasis
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[* 11] added] [stating, "[a]lthough Unit #2 was free of furniture, there
were three mattresses in the hallway right outside of the
apartment [] and there was fresh leftovers in the
refrigerator"]). Buyer's counsel objected to the same, and left
the premises (see NYSCEF Doc. No. 87, Affirmation of Brian A
Campbell, Esq.).
Buyer then objected to those items through an e-mail
exchange, having not been present at both the walkthrough and
the closing. Responding in the same format, at 10:18 A.M,
seller e-mailed buyer: "the mattresses you objected to in the
hallway are being removed now. The miscellaneous i tern's like
qtips you objected to are being removed now" (NYSCEF Doc. No.
122, Email Exchange, dated July 09, 2024). Buyer did not
immediately respond to this e-mail and neither buyer nor his
counsel appeared at the office of seller's counsel for the
closing (see NYSCEF Doc. No. 91, Transcript of Closing
[indicated the closing commenced at 10:22 A.M. and the only
appearances were as follows: Robert R. Moore, Esq., seller's
counsel; Nicholas G. Yokos, Esq., seller's counsel; and Richard
Sorrentino, Title Closer]).
Instead, at 11:15 A.M., buyer e-mailed seller as follows:
\\ . purchaser is ready, willing, and able to close and will
close on Monday July 15, 2024, at your NYC office at noon. The
purchaser will be present at the building at 10:00 a.m. on the
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[* 12] same day to do a final walk-thru of all the units" (NYSCEF Doc.
No. 102, Email Exchange between counsel, dated July 09, 2024) . 7
Seller took a default on the record at 11:30 A.M., informing
buyer of the same (see NYCEF Doc. No. 91, Time is of the Essence
Closing Transcript).
Seller then sent buyer written notice of seller's
termination of the contract (see NYSCEF Doc. No. 103, Notice of
Termination, dated July 11, 2024).
As these events occurred during the pendency of this
action, seller now moves (mot. seq. no. 003) for (1) an order
granting it leave to amend its counterclaims to conform them to
the evidence; for (2) an order granting it summary judgment on
said counterclaims; for (3) an order cancelling the November 23,
2021 notice of pendency, dated November 23, 2021; and for
(4) an order awarding seller sanctions against buyer for buyer's
frivolous (see NYSCEF Doc. No. 85, Seller's Notice of Motion;
see CPLR § 3025 (c) [governing amendments to pleadings to conform
them to the evidence]; CPLR § 3212 [governing summary judgment];
and 22 NYCRR § 130-1.1 [governing sanctions]).
As to the amendment of its counterclaims, seller requests
permission to amend its counterclaims to allege that buyer's
7 The email provides, "Hi Robert and Nicholas, The purchaser is ready, will and able to close and will close on Monday, July 15, 2024 at your NYC office at noon. The purchaser will be present at the building at 10:00 a.m. on the same day to do a final walk-thru of all the units. I will be present there as well. Regards, Boris Sorin, Esq." (id.).
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[* 13] failure to close on July 09, 2024, the final time is of the
essence closing date, despite seller's resolution of the open
permits, constitutes a breach of contract as the parties
stipulated to extend the original closing date of October 14,
2023 (see NYSCEF Doc. No. 111, Seller's Memorandum of Law in
Support of Motion to Conform the Pleadings and for Summary
Judgment).
Further, seller argues that, upon amendment of its
counterclaims, it is entitled to summary judgment because it is
undisputed that buyer failed to close on July 09, 2024,
defaulting pursuant to the contract (see id.). Further, seller
contends that it removed all personal items inside Unit #2
before the closing, and that the three mattresses in the
hallway, leftovers in the refrigerator, and Q-tips in the
bathroom were not a basis for buyer's default (see id.).
In support of its motion for summary judgment, among other
things, seller submits the affirmation of Nicholas Yokes, Esq.,
seller's counsel (NYSCEF Doc. No. 86); affirmation of Brian A.
Campbell, Esq., who personally appeared at the May 23, 2024 and
July 09, 2024 walkthroughs (NYSCEF Doc. No. 87); affirmation of
Theresa Matias, Managing Member of seller (NYSCEF Doc. No. 88);
stipulation to extend time is of the essence closing, dated June
04, 2024 (NYSCEF Doc. Nos. 84 and 90); time is of the essence
closing transcript (NYSCEF Doc. No. 91); time is of the essence
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[* 14] closing letter, dated April 11, 2024 (NYSCEF Doc. No. 93); email
exchange regarding May 23, 2024 walkthrough (NYSCEF Doc. No.
95); email exchange regarding July 05, 2024 walkthrough (NYSCEF
Doc. No. 97); email exchanges regarding Unit #2, with
photographs attached (NYSCEF Doc. Nos. 98-101); email exchange
modifying the closing date to July 15, 2024 (NYSCEF Doc. No.
102); Notice of Termination of contract, dated July 11, 2024
(NYSCEF Doc. No. 103); and contract of sale, with attachments
(NYSCEF Doc. No. 110).
Buyer submits written opposition, and cross-moves for an
order (1), pursuant to CPLR § 3025 (b), granting him leave to
amend his complaint to add a new cause of action for breach of
contract; and (2), pursuant to CPLR § 6513, extending the notice
of pendency for an additional three-year period.
Buyer essentially contends that only seller breached the
contract of sale, and that no prejudice exists in permitting him
to amend the complaint to add this claim. As to why he did not
previously assert this claim, buyer contends it was on the date
of the closing -- July 09, 2024 -- when he first discovered that
seller was "concealing" an impermissible tenant in Unit 2 (see
NYSCEF Doc. No. 157, Buyer's Memorandum of Law, p 9). Given this
alleged concealment -- which buyer contends is evidenced by the
presence of three mattresses in the hallway, and loose Q-tips
and empty hangers in Unit No. 2 -- buyer contends seller was not
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[* 15] ready, willing, and able to transfer title at closing, pursuant
to the contract (see ---- id.).
In support of its contentions, buyer submits, among other
things, the affirmation of Boris Sorin, Esq., buyer's counsel
(NYSCEF Doc. No. 114); the Contract with attachments (NYSCEF
Doc. No. 115); e-mail exchange regarding seller's request for
post-closing item removal, dated July 07, 2024 (NYSCEF Doc. No.
119); e-mail exchanges regarding Unit #2, with photographs
(NYSCEF Doc. Nos. 120-22); e-mail exchange regarding buyer's
proof of funds for closing, dated July 10, 2024 (NYSCEF Doc. No.
123); e-mail exchange regarding modification of time is of the
essence closing date (Doc. Nos. 124-125); e-mail exchange
regarding buyer's rejection of July 09, 2024 closing date
(NYSCEF Doc. No. 126); buyer's letter to seller rejecting
seller's Notice of Termination, dated July 15, 2024 (NYSCEF Doc.
No. 127); proposed amended complaint (NYSCEF Doc. No. 128);
buyer's affirmation (NYSCEF Doc. No. 129); and the affirmation
of non-party Claudia Rodriguez, who was present at the
walkthrough of July 09, 2024.
Seller submits written opposition to buyer's cross-motion.
This Court heard oral arguments on September 10, 2024, in
Part 42, 111 Centre Street, Room 574, New York, New York 10013;
counsel for both parties appeared and argued extensively in
support of their respective positions (see NYSCEF Doc. No. 185,
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[* 16] Transcript of September 10, 2024, Oral Argument). The parties
ordered the transcript of the oral argument, submitting such to
the Court on April 14, 2025 (see id.) 8
ANALYSIS
Seller's Motion for Summary Judgment
Summary judgment is an extraordinary remedy and is only
appropriate where the movant has established that there is no
question of fact on any issue which would require a trial (see
Andre v Pomeroy, 35 NY2d 361, 364 [1974); see also Bronx-Lebanon
Hosp. Ctr. v Mount Eden Ctr., 161 AD2d 480 [1st Dept 1990)).
The court may grant summary judgment upon a prima facie showing
of entitlement to judgment as a matter of law, through
admissible evidence sufficient to eliminate material issues of
fact (CPLR § 3212[b]; Nomura Asset Capital Corp. v Cadwalader,
Wickersham & Taft LLP, 26 NY3d 40, 49 [2015); Alvarez v Prospect
Hosp., 68 NY2d 320, 324 [1986); Winegrad v New York Univ. Med.
Ctr., 64 NY2d 851 [1985)). It is black letter law that such
8 While the parties and the court awaited the transcripts, buyer moved, by order to show cause (mot. seq. no. 004), for a temporary extension of the Notice of Pendency, pending the outcome of the instant motion (seq. no. 003). This Court granted said interim relief (see NYSCEF Doc. No. 173, Order to Show Cause, with Interim Relief granted, dated November 22, 2024).
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 17 of 29 Motion No. 003
[* 17] proof shall include the "affidavit" of a person having personal
knowledge of the facts, "a copy of the pleadings" and "other
available proof, such as depositions and written admissions"
(CPLR § 3212 [b]).
The court must view the facts in the light most favorable
to the non-movant, giving it the benefit of all reasonable
inferences (see De Lourdes Torres v Jones, 26 NY3d 742 [2016]).
If the moving party makes the requisite showing, the non-moving
party then has the burden "'to establish the existence of
material issues of fact which require a trial of the action'"
(id. at 763, citing Vega v Restani Constr. Corp., 18 NY3d 499,
503 [2012], quoting Alvarez, 68 NY2d at 324).
"The elements of a cause of action to recover damages for
breach of contract are 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" (Rayham v Multiplan, Inc., 153 AD3d
865, 867 [2d Dept 2017], citing Tudor Ins. Co. v Unithree Inv.
Corp., 137 AD3d 1259, 1260 [2d Dept 2016]; PFM Packaging Mach.
Corp. v ZMY Food Packing, Inc., 131 AD3d 1029, 1030 [2d Dept
2015]). Further, a contract is to be construed in accordance
with the parties' intent, generally discerned from the four
corners of the document itself. "Consequently, a written
agreement that is complete, clear and unambiguous on its face
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 18 of 29 Motion No. 003
[* 18] must be enforced according to the plain meaning of its terms"
(Rayham, supra [quotations omitted]).
"When 'time of the essence' is expressly stated [in a
contract], the parties are obligated to strictly comply with the
terms of the contract" (Champion v Blue Water Advisors, Inc., 82
AD3d 568, 568 [1st Dept 2011], citing Milad v Marcisak, 307 AD2d
281, 282 [2d Dept 2003]). When said provision is "included in a
real estate contract, [as here] each party must tender
performance on the [time is of the essence] day unless the time
for performance is extended by mutual agreement" (emphasis
added) (Milad, 307 AD2d at 281-282, citing Grace v Nappa, 46
NY2d 560, 565 [1979]).
"Failure to perform on the date specified, a material
element of the contract, constitute[s] a default" (Mosdos
Oraysa, Inc. v Sausto, 13 AD3d 838, 840 [3d Dept 2004], citing
Grace, 46 NY2d at 566; see also 115-117 Nassau St., LLC v Nassau
Beekman, LLC, 74 AD3d 537 [1st Dept 2010]). "The fact that [a
party to a contract] claims it was ready and willing to close a
day or two after the 'law day' is immaterial" where it was not
ready on the time-of-essence date" (Champion, 82 AD3d at 568,
citing Spiegel v Kessler, 216 AD2d 239, 241 [1st Dept 1995]).
"[W]here a seller seeks to hold a purchaser in breach of
contract, the seller must establish that he was ready, willing,
and able to perform on the time-of-the-essence closing date, and
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 19 of 29 Motion No. 003
[* 19] that the purchaser failed to demonstrate a lawful excuse for its
failure to close" (Donerail Corp. N.V. v 405 Park LLC, 100 AD3d
131, 138 [1st Dept 2012], citing Diplomat Props., L.P. v Komar
Five Assoc., LLC, 72 AD3d 596, 600 [1st Dept 2010], lv denied 15
NY3d 706 [2010]).
Here, seller meets its prima facie burden. There is no
dispute that the parties agreed to a time-is-of-essence closing
date on their contract for sale of real property: July 09, 2024,
at 10:00 A.M., at the office of seller's counsel. Further,
seller submits proof that it was -- in accordance with the terms
of the parties' contract -- ready, willing and able to transfer
title to buyer in accordance with their written agreement (see
NYSCEF Doc. No. 20, Contract [expressly stating that closing
shall be time is of the essence], NYSCEF Doc. No. 84,
Stipulation to extend time is of the essence closing [expressly
stating that July 09, 2024 closing date is time is of the
essence], NYSCEF Doc. No. 91, Closing Transcript [confirming
possession of deed, ACRIS forms, title policy, and clear title
other than buyer's signature]; see also NYSCEF Doc. No. 185,
Oral Argument Transcript, p 24 [buyer conceding "clear title"];
NYSCEF Doc. No. 93, Open Permit Search, dated April 04, 2024
[confirming that "there are no open permits found on file in the
Building Department"]).
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 20 of 29 Motion No. 003
[* 20] Seller also establishes that buyer failed to appear at the
closing at 10:00 A.M. or thereafter on July 09, 2024 (see Doc.
No. 91, Transcript of Closing [confirming buyer's failure to
appear]). Indeed, it is undisputed that buyer's counsel
e-mailed seller, after 11:00 A.M., on July 09, 2024, requesting
that the closing be extended to July 15, 2024 when buyer would
be "present at the building . to do a walk-thru of all
units" (see NYSCEF Doc. No. 102, Email Exchange between counsel,
dated July 09, 2024; see also Seaman v Schulte Roth & Zabel,
LLP, 176 AD3d 538, 539 [1st Dept 2019] [" [E] -mails may be
considered as documentary evidence if those papers are
'essentially undeniable'"]).
Finally, seller submits prima facie proof that buyer had no
lawful excuse for its failure to close. Three bare mattresses
in a hallway of the building, and undescribed food in a
refrigerator in a single unit of the subject building,
consisting of five residential units and a retail unit on the
ground floor, does not constitute material breaches of the
contract and were immediately curable (Mosdos Oraysa, Inc. v
Sausto, 13 AD3d 838, 840 [3d Dept 2004] ["Failure to perform on
the date specified, a material element of the contract,
constitute[s] a default"], citing Grace, 46 NY2d at 566; see
also 115-117 Nassau St., 74 AD3d at 537; see 1029 Sixth v Riniv
Corp., 9 AD3d 142, 147 [1st Dept 2004] [describing "broom clean"
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 21 of 29 Motion No. 003
[* 21] as there being only "a trash bag or two needing to be brought to
the curb", and not "garbage bags, refuse, and shelving which
[would have] cost thousands of dollars and required hours of
labor to clear away"]). Buyer's own proof indicates that "Unit
#2 was free of furniture" (NYSCEF Doc. No. 130, Affirmation of
Claudia Rodriguez, providing that "although Unit #2 was free of
furniture, there were three [bare] mattresses in the hallway
right outside of the apartment [] and there was fresh leftovers
in the refrigerator").
Regarding damages, seller also established prima facie
entitlement to retain buyer's downpayment. It is undisputed the
parties' agreement explicitly provides that, upon buyer's
default, "the deposit paid. . upon execution of the agreement
shall be retained by seller as liquidated damages" (NYSCEF Doc.
No. 20, Contract of Sale, with document entitled "Additional
'Subject To' Provisions" attached, at 1 R6) ; 9 see also Westreich v Bosler, 106 AD3d 569, 570 [1st Dept 2013] [holding that
"because this was a time-of-the-essence closing, plaintiffs
defaulted by failing to appear, and defendant [] was entitled to
9 Paragraph R6 provides, "PURCHASER'S DEFAULT: If the seller is ready, willing and able to convey marketable title in accordance with the provisions of this agreement and the purchaser is unable or unwilling to complete the purchase and take title, the parties agree that damages are difficult to determine and so as to avoid dispute and uncertainty, damages are hereby fixed as the amount paid by the purchaser upon execution of this contract. In the event of purchaser's willful default, the deposit paid by the purchaser upon execution of this agreement shall be retained by seller as liquidated damages" (emphasis added).
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 22 of 29 Motion No. 003
[* 22] keep the down payment"], citing Palmiotto v Mark, 145 AD2d 549,
550 [2d Dept 1988]). Further, it is undisputed that such down
payment is $275,000.00 (see NYSCEF Doc. No. 134, Buyer's
Response to Statement of Material Facts, noting that it is
undisputed that buyer deposited $275,000.00 as a downpayment
following execution of the contract).
In response to seller's prima facie showing, buyer fails
"'to establish the existence of material issues of fact which
require a trial of the action'" (Vega v Restani Constr. Corp.,
18 NY3d 499, 503 [2012], quoting Alvarez, 68 NY2d at 324).
Buyer's claim that he would be ready, willing, and able to close
six days after the time is of the essence closing date is
immaterial (see Champion, 82 AD3d at 568, citing Spiegel, 216
AD2d at 241). Further, there is no dispute that the parties did
not come to a mutual agreement to extend the closing date of
July 09, 2024, which the parties' stipulated was final (see
NYSCEF Doc. No. 84, Stipulation to Extend Time is of the Essence
Closing, dated June 04, 2024)
Additionally, buyer submits no factual support upon which
the court could find an issue of fact exists as to buyer having
a lawful excuse for its failure to close. Buyer's argument
that there was an "impermissible tenant" residing in the
building (see NYSCEF Doc. No. 133, Buyer's Memorandum of Law in
Opposition, p 9; see also NYSCEF Doc. No. 114, Affirmation of
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 23 of 29 Motion No. 003
[* 23] Boris Sorin, Esq.) -- is a conclusory suspicion, which is
insufficient to defeat summary judgment (see Alvarez, 68 NY2d at
325 [holding that mere conclusions and unsubstantiated
allegations are insufficient to defeat summary judgment]). "A
conclusory affidavit or an affidavit by an individual without
personal knowledge of the facts does not establish the
proponent's prima facie burden" (Saunders v J.P.Z. Realty, LLC,
175 AD3d 1163, 1164 [1st Dept 2019], citing Vermette v Kenworth
Truck Co., 68 NY2d 714 [1986]).
In any event -- even if seller was "in breach of the
contract on the day of the closing because the [entire building
was] not vacant [-- of three mattresses in the hallway and food
in a single refrigerator--], this alleged defect was curable
within a reasonable time and thus the buye[r was] obligated to
tender performance and permit the seller[] the opportunity to
cure" (emphasis added) (Hegner v Reed, 2 AD3d 683, 685 [2d Dept
2003] [where "[o]n the morning of the closing, the buyers
appeared at the house to conduct a walk-through inspection and
discovered that the premises were not in 'broom clean' or vacant
condition"] ; cf. Dambrose v Malik, 12 Misc3d 1192 [A] [Civ Ct
Queens Cnty 2006] [determining that evidence established that
defendant breached contract where defendant admitted that he was
unable to convey the property in "broom clean and vacant"
condition in accordance with the contract, nor could he cure,
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 24 of 29 Motion No. 003
[* 24] because tenants, who had been in possession of the premises for
a long period of time, were ill and could not vacate the
premises] [emphasis added]).
However, here, buyer simply failed to appear for the time-
is-of-the-essence closing (see Sherman v Real Source Charities,
Inc., 41 AD3d 946, 948 [holding that "[s]ince the contract
expressly provides that time is of the essence, defendant's
failure to timely tender performance placed it in default and,
contrary to defendant's assertions, equitable considerations
will not excuse that default"] [internal citations omitted]).
Having determined that seller has established an unrebutted
prima facie showing entitlement to summary judgment on its
counterclaim for breach of contract, the Court next addresses
seller's request for sanctions against buyer.
Sanctions
Seller's application for sanctions, pursuant to 22 NYCRR
§ 130-1.1, is denied. Section 130-1.1 provides, as relevant
here:
"(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees,
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 25 of 29 Motion No. 003
[* 25] resulting from frivolous conduct as defined in this Part.
"(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both.
"(c) For purposes of this Part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or(3) it asserts material factual statements that are false."
Seller's bare assertions of buyer's frivolous conduct are
insufficient to justify an award of sanctions (see Weir v
Montefiore Med. Ctr., 208 AD3d 1122, 1142 [1st Dept 2022]
[finding that the request for sanctions was properly denied, as
plaintiff failed to identify frivolous conduct, merely making
assertions in a conclusory fashion]).
Buyer's Cross-Motion to Amend the Complaint
Leave to amend a pleading should be freely given absent a
showing of substantial prejudice or surprise, unless the
proposed amendment is palpably insufficient or patently devoid
of merit (see CPLR § 3025 [b]; JP Morgan Chase Bank, N.A. v Low
Cost Bearings N.Y., Inc., 107 AD3d 643, 644 [1st Dept 2013]).
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 26 of 29 Motion No. 003
[* 26] "On a motion for leave to amend, plaintiff need not establish
the merit of its proposed new allegations, but simply show that
the proffered amendment is not palpably insufficient or clearly
devoid of merit" (MBIA Ins. Corp. v Greystone & Co., Inc., 74
AD3d 499, 500 [1st Dept 2010] [internal citation omitted]).
Further, the party seeking to amend is "not required to
support its allegations with evidence or an affidavit of merit"
(St. Nicholas W. 126 L.P. v Republic Inv. Co., LLC, 193 AD3d
488, 488-489 [1st Dept 2021); see also Sorge v Gona Realty, LLC,
188 AD3d 474, 475 [1st Dept 2020)). Courts have repeatedly
emphasized this liberal standard (see Cherebin v Empress
Ambulance Serv., Inc., 43 AD3d 364, 365 [1st Dept
2007) [affirming that leave should be granted unless there is
prejudice); see also NYAHSA Servs., Inc., Self-Ins. Tr. v People
Care Inc., 156 AD3d 99, 103 [3d Dept 2017) [holding that "leave
to amend pleadings should be freely granted" where there is no
showing of unfair surprise or legal futility]).
Applying these principles here, buyer's application to
amend his complaint is granted. The proposed amendments are not
palpably insufficient, and seller has failed to demonstrate
prejudice. Therefore, the proposed amended complaint annexed to
buyer's cross-motion is deemed served on seller but dismissed in
accordance with this court granting summary judgment to seller.
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 27 of 29 Motion No. 003
[* 27] Finally, notice of Pendency, dated November 23, 2021, is
cancelled (see Guberman v Rudder, 85 AD3d 683, 684 [1st Dept
2011] ["the notice of pendency could not be maintained in the
absence of a valid claim"]).
Accordingly, it is hereby
ORDERED that motion (seq. no. 003) of defendant 303 WEST
116 ST. LLC is granted, in part, to the extent that it seeks an
order granting it summary judgment on its counterclaims for
breach of contract and for a declaration that the subject
contract is null and void; it is further
ORDERED that defendant's motion (seq. no. 003) is otherwise
denied, to the remaining extent that it seeks sanctions against
plaintiff SHAI SUSTIK; it is further
ORDERED that escrowee (put in name/entity) is directed to
make payment of the down payment of $275,000.00 to defendant 303
WEST 116 ST. LLC; it is further
ORDERED that the Notice of Pendency, dated November 24,
2021, and temporarily extended by this Court on November 22,
2024, is cancelled and vacated; and it is further
ORDERED that plaintiff SHAI SHUSTIK's cross-motion to amend
the complaint is granted, and the amended complaint of plaintiff
SHAI SHUSTIK is dismissed.
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 28 of 29 Motion No. 003
[* 28] THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
656695/2021 SHUSTIK, SHAI vs. 303 WEST 116 ST. LLC Page 29 of 29 Motion No. 003
[* 29]