Judith J. Gische, J.S.C.
Upon the foregoing papers, the decision and order of the court is as follows:
Plaintiff commenced this action to obtain title to 81 East 125
The motion for summary judgment is timely brought because issue has been joined, but no note of issue has yet been filed. CPLR § 3212;
The undisputed facts are as follows. The premises contain a landmark building known as the former Corn Exchange Bank Building which was built in the 19
Under the terms of the Deed, defendant committed to rehabilitate the building and restore the exterior facade of the building to its original state. Defendant was required to complete the rehabilitation and obtain the certificate of occupancy within thirty-six months of the date of the Deed. Defendant further agreed to establish a non-profit culinary institute in part of the renovated space, and to continue this educational use of the premises for five years. The Deed further provides:
On April 13, 2007, plaintiff served a notice of default on defendant notifying defendant that it was in violation of its obligations to complete the rehabilitation and to operate a culinary and educational institution for a period of five years.
Arguments of the Parties
There is no dispute that defendant did not complete the rehabilitation nor obtain a certificate of occupancy within thirty-six months of the date of the Deed. Plaintiff argues that the defendant's failure to timely complete the rehabilitation permits it to re-enter and take fee title to the property (first cause of action). Plaintiff also seeks an order and judgment ejecting defendant based on defendant's breach of the condition subsequent (second cause of action) and awarding plaintiff its legal fees and costs incurred in connection with exercising its rights under the Deed (third cause of action). Plaintiff additionally contends that the defendant has failed to comply with its obligation contained in the Deed to operate a culinary school within five years after the conveyance of the premises.
Defendant argues that summary judgment is inappropriate because plaintiff has failed to meet its burden on this motion, there has been no discovery and there are material issues of fact with respect to its affirmative defenses. Specifically, defendant maintains that although it did not complete its renovation of the premises within 36 months of the date of the deed, it cured this default by continuing renovations. Defendant also maintains that plaintiff has engaged in conduct which substantially hindered defendant's acquisition and renovation of the premises and therefore, it should not be allowed to retake title to the premises.
On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial. CPLR § 3212;
Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue.
At the outset, the court rejects defendant's procedural arguments in opposition to the motion. Defendant argues that plaintiffs motion should be denied because it is not supported by an affidavit of someone with personal knowledge of the underlying facts. A verified pleading is the equivalent of a responsive affidavit for purposes of a motion for summary judgment (
Defendant's argument that summary judgment is premature because there has been no discovery is also unavailing. CPLR § 3212 (f) broadly provides that "[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just." Where a party opposed to summary judgment contends that discovery is incomplete, the court may consider whether the motion is premature because the information necessary to fully oppose the motion remains under the control of the proponent of the motion. CPLR § 3212 (f);
Turning to the substantive aspects of the motion, the court's analysis follows:
Under the terms of the Deed, plaintiff must prove three essential elements to enforce the condition subsequent contained in the construction/use provision:  that defendant defaulted on its obligations under the Deed;  that plaintiff notified defendant of the default; and  that defendant failed to cure the default. For the reasons that follow, plaintiff has met this burden and defendant has not come forward with sufficient opposition to prevent the granting of summary judgment. Plaintiff has shown that defendant failed to comply with the requirement that the premises be rehabilitated. Indeed this is conceded by defendant. Plaintiff has shown that it sent a Notice of Default. Again this is also a conceded fact. As for the absence of cure, plaintiff has shown that the premises is still not rehabilitated at this time, nor is there any reasonably completion date.
Defendant claims that since getting the notice they have undertaken steps to cure. Ethel Bates, President of the Defendant, has provided an affidavit to the court in which she makes factual statements regarding defendant's efforts to renovate the premises and secure financing. Although, Ethel Bates generally maintains that defendant took various steps cure this default and comply with the construction/use provision of the Deed, she does not describe, in any detail, defendant's actions taken to comply with these obligations. Ms, Bates states that construction is currently progressing, that "debris has been removed to a safe level and floor sections shored up including removal of huge iron gates lying across the vault areas in the basement." Ms. Bates also claims that defendant has found "the right financial partner" to serve as co-developer, yet does not otherwise identify this entity. There is no information about when and under what conditions this new "financial partner" will provide funds necessary to bring the project to completion. There is no calendar of proposed construction. Without financing, there can be no such definite plan.
Defendant has also provided the affidavit of Trevor Salmon, P.E., defendant's engineer. Mr. Salmon states that based upon a walk-through of the premises conducted on August 26, 2008, he believes that the premises are structurally sound. Specifically, Mr. Salmon states:
Defendant has also provided the affidavit of David Danois, a licenced architect retained by defendant in connection with the rehabilitation project at the premises, who opines that he has "not seen any marked deterioration in the exterior over the pas few years."
In May 2007, defendant claims that it retained S&P Contractors LLC as Construction Managers to continue renovations. To date, defendant claims that it has incurred over $375,000 in construction and demolition costs and $450,000 in expenses for architectural and engineering services. Plaintiff, however, contends that the only work commissioned by the defendant has been "in connection with notices of violations, unsafe building and emergency declarations placed on the building by the Department of Buildings and/or possibly other City agencies." Plaintiff maintains that the premises remain vacant, deteriorated and unsafe.
Despite the affidavits of Ms. Bates, Mr. Danois and Mr. Salmon, defendant has failed to raise a triable issue of fact as to whether it cured its default under the Deed. Mr. Danois and Mr. Salmon's affidavits do not really address issues of rehabilitation. They simply express opinions on the current condition of the premises. Ms. Bates' affidavit is insufficient because she has made only bare and conclusory allegations about construction contracts defendant has entered into and that the defendant has finally found an entity which can finance the rehabilitation. Defendant has not submitted copies of any construction contracts, bills or invoices for construction work at the premises or any other proof of the work it claims would demonstrate that it has cured its default under the Deed. Perhaps most significantly, any cure carries with it an obligation to see the construction through to completion. Even accepting defendant's contention, that it did some work on the premises post-Notice of Violation, there are no facts presented from which a trier of fact could reasonably conclude that the defendant's have any ability to complete the construction. The Deed itself speaks of the cure in terms of commencing or resuming the construction "until completion." It does not recognize doing some work as a cure.
Today, the Corn Exchange Bank Building has still not been restored to its former glory and the promise of an affordable educational opportunity and other financial opportunities for the local community remains out of reach. There is another case pending before this court wherein the City of New York and the Landmarks Preservation Commission wherein those plaintiffs allege that the Corn Exchange Bank Building is significantly deteriorated, to wit: the roof is missing, some floors are structurally unsound or have collapsed, portions of the exterior walls are missing, windows are missing or damaged and there is extensive water damage (
As for the affirmative defenses, defendant has failed to establish any genuine issue of material fact with respect thereto which would defeat plaintiffs prima facie case. Defendant has asserted several affirmative defenses to the instant action, to wit:  prevention or hindrance;  unclean hands;  equitable estoppel;  laches; and  waiver. In her affidavit, Ethel Bates chronicles numerous events which transpired before defendant acquired the premises, from 1997 through the transfer of the Deed and title to the premises, which she claims made it more difficult for defendant to complete the rehabilitation of the premises within thirty-six months. Defendant's arguments based upon plaintiff's purported bad faith conduct during this period of time must be rejected because, even assuming defendant's claims are true, these acts took place before the Deed was executed and defendant obligated itself thereunder. The prevention doctrine rests on the implied obligation not to frustrate or prevent performance of a contract by the other party (
Ethel Bates also maintains that the defendant "took the Deed even though the three-year renovation clause of the Deed was unreasonable and would not provide adequate time before the time period became a liability." Defendant essentially claims that the construction/use provision is unconscionable and, therefore, unenforceable. Even though this defense is not asserted in its answer, assuming arguendo that it was, defendant has not otherwise established that the contract was both procedurally and substantively unconscionable when made. As previously stated by the Court of Appeals, defendant must demonstrate an "absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party" (
Defendant argues that plaintiff cannot enforce the construction/use provision because plaintiff frustrated or prevented defendant's performance of the rehabilitation work. While it is true that a party to a contract cannot rely on the failure of another to perform when he or she has frustrated or prevented the obligor's performance (see
Ms Bates does claim in her affidavit that "[o]ut of the blue, in April 2006, the New York City Department of Buildings ("DOB") asserted that the building was unsafe because, among other reasons, the roof had been removed and the windows were not sealed." Defendant implies that the DOB and/or plaintiff did something improper because, it claims, although these violations had existed for years while the City owned the building, the violations were not raised until this time. Ms. Bates states that defendant thereafter retained Mazzochi Wrecking Co. ("Mazzochi") to complete the stabilization work at the premises to remedy the violations. Defendant claims this work was completed in 2007, at a cost of $100,000.
Ms. Bates' testimony about being "inundated with notices of violation with the DOB" is unavailing. There is no reason why defendant, a property owner, should not have been subject to the same rules and regulations set forth by the DOB as any other property owner. Even if defendant could show that there was a conspiracy between the DOB and plaintiff to stymy defendant's efforts to rehabilitate the premises by issuing these notices of violation,
In May 2006, defendant began negotiating a co-developing agreement with Integrated Holdings, LLC ("Integrated"). Ms. Bates claims that plaintiff "pressured" defendant to reach an agreement with Integrated and "insinuated] itself into [defendant's] negotiations with Integrated." Assuming arguendo that plaintiff did meet with Integrated for forty-five minutes before a meeting subsequently held between plaintiff, defendant and Integrated, this act also does not rise to the sort of behavior that would allow defendant to avail itself of the prevention doctrine (see generally
Defendant's argument with respect to the affirmative defense of unclean hands is premised on the same claims that plaintiff acted in bad faith by hindering defendant's renovation of the premises. To charge a party with unclean hands, it must be shown that said party was "guilty of immoral or unconscionable conduct directly related to the subject matter."
Defendant also contends that the plaintiff should not be permitted to maintain this action because it unreasonably delayed in seeking to enforce the construction/use provision. By March 2006, after the thirty-six month renovation period had ended, defendant had still failed to find a co-developer necessary to provide the financial backing to complete the renovation work. At that time, Ethel Bates claims that Judy Barr, then Assistant Vice President of plaintiff, "indicated" to Ms. Bates that plaintiff "would work with the [defendant], rather than seeking to enforce the three-year renovation period." Despite this pledge, Ms. Bates maintains that plaintiff held up the defendant in meeting its obligations. Ms. Bates has provided a copy of a letter dated March 29, 2006 she wrote to Ms. Barr wherein she states, in pertinent part:
Ms. Bates also claims that after February 2006, plaintiff still "encouraged [defendant] to incur expense renovating and stabilizing the building." Defendant maintains that it had to put up new bridges and scaffolding as a result of numerous notices of violation from the Department of Buildings ("DOB")
Plaintiff has provided copies of letters dated May 11, June 15, September 21, and November 15, 2006, from Susan Goldfinger, Senior Vice President of Plaintiff, to defendant, in which plaintiff acknowledged defendant's default under the Deed, but would grant defendant more time to enter into an agreement with Integrated. The November 15, 2006 letter specifically states that:
The other letters sent to defendant from Ms. Goldfinger all contain similar language indicating that plaintiff was not waiving its rights to pursue its remedies under the Deed by granting defendant additional time to cure its default.
"[W]aiver is an intentional relinquishment of a known right and should not be presumed" (
Defendant's waiver and laches arguments are both premised upon the fact that plaintiff gave defendant additional time beyond the initial thirty-six month period to comply with the Deed, and didn't serve a Notice of Default on defendant until April 2007. Nonetheless, the letters submitted by plaintiff and indisputably received by defendant clearly and unequivocally state that plaintiff was not waiving its rights under the Deed and restated that defendant had defaulted thereunder. Therefore, defendant cannot possibly claim prejudice as a result of any delay by plaintiff to enforce the construction/use clause when it knowingly accepted the extensions of time in order to cure its default under the Deed.
The doctrine of equitable estoppel should not be applied in this case either. The purpose of invoking the doctrine is to prevent the infliction of unconscionable injury and loss upon one who has relied on the promise of another (3 Williston, Contracts [3d ed], § 533A, at p. 798;
Here, it cannot be said that plaintiff's exercise of its right to reenter and take possession of the premises is unconscionable when this right was clearly intended by the parties when the Deed was executed. Indeed the right is perfectly consistent with the parties' intention to make the premises productive. If defendant could not do so within the time period agreed to, it was contemplated that plaintiff would retake the property to pursue other avenues. Moreover, defendant's reliance upon plaintiff's extensions of time and the incursion of expenses in connection with emergency repairs trying to cure their default under the Deed does not produce an unconscionable result. Defendant was aware of its default, and rather than give up the premises, it chose to hold onto it and try to cure the default. Defendant could reasonably anticipate that a failure to cure its default would give rise to plaintiffs right to retake the premises under the construction/use provision in the Deed.
Accordingly, the court has considered the defendant's affirmative defenses and finds them unavailing; plaintiff is entitled to summary judgment on its first and second cause of action.
Having granted plaintiff's motion for summary judgment, the court next addresses that branch of plaintiff's motion for costs, disbursements and legal fees to be paid by defendant. There is no dispute that the Deed expressly provides plaintiff a right to collect such costs and attorneys fees. Expenses, costs and disbursements can include an award of reasonable attorneys' fees albeit "in a limited amount."
The Motion and Cross-Motions to Intervene
By decision and order made in open court on January 29, 2009, the court granted Hi-Tech's motion to intervene only to the limited extent of allowing Hi-Tech to dispute whether the title that defendant is herein compelled to convey to plaintiff is encumbered by Hi-Tech's mechanics liens filed during the period in which defendant owned the premises. The court otherwise denied Hi-Tech's motion to intervene. The court also denied the cross-motions to intervene, due to procedural deficiencies identified by the court in its decision. However, the parties to this action consented to allow SNA and Antal to intervene in this action to the same limited extent that Hi-Tech was permitted to intervene.
Despite the court's determination that plaintiff is entitled to a declaration that it is vested with title to the premises, the court reserves its decision on the collateral issue of what title defendant should convey and plaintiff is entitled to receive, to wit, whether the interveners' mechanics liens encumber plaintiffs title or not. Consequently, the court stays its order directing defendant to execute and deliver a deed for the premises to plaintiff pending the court's determination of the aforementioned issue.
In accordance herewith, it is hereby:
 plaintiff is entitled to a declaration that plaintiff is vested with title to the premises located at 81 East 125
 although plaintiff is entitled to a judgment that defendant convey the premises located at 81 East 125
 plaintiff is entitled to a judgment ejecting defendant and its respective employees, agents and invitees from possession of the premises located at 81 East 125
 plaintiff may make a motion for an order awarding it reimbursement from defendant for its reasonable legal fees, costs and disbursements within sixty days of the date of this decision. Any such motion shall include not only factual justification for the amount of the fees sought, but also legal justification for permitting such an award in their favor. Failure to make such a motion within the time provided herein shall be deemed an abandonment of this claim; and it is further
Any requested relief not expressly addressed herein has nonetheless considered by the court and is denied.
This shall constitute the decision and order of the Court.