Opinion
Index No. 51285/2016
06-21-2018
ISRAEL CONTRERAS and LINITA METRIKAITE, Plaintiffs, v. ELEANOR MISCIOSCIA, Defendant.
NYSCEF DOC. NO. 212 To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. PRESENT: HON. WILLIAM J. GIACOMO, J.S.C. Sequence No. 4 & 5
DECISION & ORDER
In an action for, inter alia, a judgment declaring that the plaintiffs validly exercised an option to purchase certain premises and for specific performance of that option, (1) the plaintiffs move to reargue the portion of this Court's decision and order, dated January 29, 2018, which granted that branch of the defendant's motion which was for summary judgment dismissing the second cause of action for specific performance and the sixth cause of action for breach of the option agreement; and (2) the defendant cross-moves to reargue those portions of the order which denied the remaining branches of her motion for summary judgment dismissing the complaint:
Papers Considered
1. Notice of Motion/Affirmation of Mark A. Rubeo, Jr., Esq./Exhibits 1-4;
2. Notice of Cross Motion/Affirmation of Matthew Montana, Esq./Exhibits 1-6;
3. Reply Affirmation of Sharman T. Propp, Esq./Exhibit 5.
Factual and Procedural Background
Plaintiffs entered into an agreement to lease the premises located at 36 Storm Street, Tarrytown, New York, owned by defendant. The lease period commenced on March 1, 2013, and did not have an end of term date. The lease provided that the rent would be $1,500 which would be applied toward the current mortgage. The lease further provided, "[i]n the event the Tenant shall be financially able to pay off the entire balance of the mortgage, then the parties agree that a Contract of Sale shall be drafted and the subsequently ownership of the premises shall be conveyed to the Tenant".
Plaintiffs commenced this action against defendant seeking declaratory relief that the lease remains in full force and effect; specific performance of the agreement compelling the defendant to convey title to the premises pursuant to the terms set forth in the lease; an injunction restraining defendant from commencing or maintaining any eviction or holdover proceeding pending final judgment; an equitable lien against the premises in the amount of $50,000 for the improvements to the premises made by the plaintiffs; quantum meruit; breach of contract with respect to the provisions of the lease requiring plaintiffs to pay $1500 per month for rent and the option to purchase agreement; and breach of the covenant of quiet enjoyment.
Defendant previously moved for summary judgment dismissing the complaint. In a decision and order, dated January 29, 2018, this Court granted that branch of the defendant's motion which was for summary judgment dismissing the second cause of action for specific performance and the sixth cause of action for breach of the option agreement. The motion was otherwise denied.
Plaintiffs now move to reargue that portion of this Court's order which granted that branch of the defendant's motion which was for summary judgment dismissing the second cause of action for specific performance and the sixth cause of action for breach of the option agreement.
The defendant cross-moves to reargue those portions of the order which denied the remaining branches of her motion which was for summary judgment dismissing the complaint.
Discussion
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). "Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law of for some [other] reason mistakenly arrived at its earlier decision." (Weiss v Bretton Woods Condominium II, 151 AD3d 905 [2d Dept 2017] quoting Mudgett v Long Island Rail Rd., 81 AD3d 614, 614 [2d Dept 2011] [internal quotation marks omitted]).
Plaintiffs argue that the Court incorrectly found that they did not have the financial capacity to pay off the entire balance of the mortgage and that defendant failed to establish the amount of the mortgage at the time they exercised the option. Plaintiffs argue that defendant's failure to establish the balance of the mortgage at the time the option was exercised - in December 2015 - warranted the denial of her motion. Moreover, the plaintiffs argue that the Court failed to take into account the "extensive" evidence of their ability to pay the mortgage balance.
With respect to the option to purchase, this Court held:
Here, the parties entered into an option contract, whereby defendant's obligation to sell the property and the plaintiffs'
obligation to buy the property would arise if the plaintiffs were financially able to pay off the entire balance of the mortgage. Defendant demonstrated prima facie that plaintiffs never validly exercised the option as they failed to demonstrate their financial capacity to pay off the entire balance of the mortgage (see Broadwall Am., Inc. v. Bram Will-El LLC, 32 AD3d 748 [holding that plaintiff having failed to tender the requisite payment within the options period never fulfilled the condition precedent to defendants' performance under the contract and derived no rights thereunder that might be enforced by the courts]). In opposition, plaintiffs fail to raise a triable issue of fact.
Plaintiffs failed to demonstrate that the Court overlooked or misapprehended the facts or law or mistakenly arrived at its earlier decision.
In support of her motion for summary judgment, the defendant had submitted the deposition transcript of Mr. Contreras. Mr. Contreras testified that in May 2014, defendant demanded that plaintiffs pay $2050 per month in rent or pay off the Chase mortgage, otherwise she would have to sell the premises. He testified that plaintiffs met with defendant at her home in Mahopac in May 2014. At that time, "[defendant] encourage us to get a mortgage to buy the house then for the remaining of the mortgage that she had at that time. And we tried, and again, we couldn't get the mortgage again" (Exhibit X to defendant's summary judgment motion at 64). He further testified, "she gave us a letter for how much the remaining of the mortgage was" and stated that they attempted to get preapproval for that amount but were unsuccessful (Exhibit X to defendant's summary judgment motion at 64-65). Again, Mr. Contreras testified, "[s]he gave us the payoff amount of the house" (Exhibit X to defendant's summary judgment motion at 64-66).
Mr. Contreras further testified that plaintiffs, in December 2015, exercised their option to purchase the house. He stated that they went to a mortgage broker and "were approved for the amount that was left on the mortgage then" referring to the payoff amount defendant gave them when they met at her house in Mahopac (Exhibit X to defendant's summary judgment motion at 86). He referred to the payoff letter provided to them by defendant and testified that the payoff amount was $255,000 (Exhibit X to defendant's summary judgment motion at 87).
In his affidavit in opposition to the defendant's motion for summary judgment, Mr. Contreras attested that the payoff letter defendant handed him was dated May 8, 2014, and reflected an outstanding principal balance of $251,782.68 and a total balance of $255,832.31.
Mr. Contreras also identified a letter from Chase that was provided to plaintiffs from defendant with a pay-off amount of $246,334.18 as of October 2016 (Exhibit X to defendant's summary judgment motion at 92).
Mr. Contreras admitted that the mortgage pre-approval he received in November 2015 was for $200,000 (Exhibit X to defendant's summary judgment motion at 90-93). Mr. Contreras attested that this pre-approval was issued before his wife started a full-time position as a health aide in the Tarrytown school district. Mr. Contreras stated that defendant's contention that plaintiffs could not afford to pay off the mortgage ignored any contributions they would make from their personal bank account. He further indicated that Ms. Metrikaite's sister was willing to give them a gift of $18,000 to $20,000 to purchase the premises.
Contrary to plaintiffs' contention, the Court did not misapprehend the facts or law or mistakenly arrived at its earlier decision. The evidence submitted demonstrated the payoff amount of the mortgage which plaintiffs' relied upon to get the mortgage pre-approval. Plaintiffs' contention that the defendant was required to provide a payoff amount in December 2015 is without merit as the mortgage balance is fluid. The plaintiffs were aware that the payoff amount as of May 2014 was $255,000. They were unable to obtain a mortgage at that time. In October 2016, they were aware that the payoff amount was $246,000. It is undisputed that plaintiffs' mortgage pre-approval was for $200,000. Thus, plaintiffs never validly exercised the option as they failed to demonstrate their financial capacity to pay off the entire balance of the mortgage. In opposition, plaintiffs failed to raise a triable issue of fact. The plaintiffs offered mere speculation and hope that they would be able to pay the balance of the mortgage.
Moreover, a motion to reargue shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry (see CPLR 2221 [d] [3]). Even where a motion for reargument is technically untimely under CPLR 2221 (d) (3), a court has discretion to reconsider its prior ruling if a timely notice of appeal had been filed (see CPLR 2004; HSBC Bank USA, N.A. v Halls, 98 AD3d 718 [2d Dept 2012]; Garcia v The Jesuits of Fordham, 6 AD3d 163, 165 [1st Dept 2004]; Terio v Spodek, 63 AD3d 719 [2d Dept 2009] [holding that when an appeal from the order is pending and unperfected at the time a motion for reargument is made, the Supreme Court providently exercised its discretion to entertain the motion for leave to reargue notwithstanding that it was made beyond the 30-day limit set forth in CPLR 2221 (d) (3)]; Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 638 [2d Dept 2005]; Leist v Goldstein, 305 AD2d 468, 469 [2d Dept 2003])
Here, the Court declines to exercise its discretion to entertain defendant's untimely motion to reargue. A motion to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented (see McGill v Goldman, 261 AD2d 593 [2d Dept 1999]; Foley v Roche, 68 ad2d 558, 567-568 [1st Dept 1979]). In any event, the plaintiffs failed to demonstrate that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law.
Accordingly, the plaintiffs' motion to reargue that portion of this Court's decision and order, dated January 29, 2018, which granted that branch of the defendant's motion which was for summary judgment dismissing the second cause of action for specific performance and the sixth cause of action for breach of the option agreement is DENIED (motion sequence # 4); and the defendant's cross motion to reargue those portions of the order which denied the remaining branches of her motion which was for summary judgment dismissing the complaint is DENIED.
Counsel for all parties are directed to appear in the Trial Ready Part, room 1200, on July 25, 2018, at 9:30 a.m. as previously scheduled. Dated: White Plains, New York
June 21, 2018
/s/_________
HON. WILLIAM J. GIACOMO, J.S.C. H: ALPHABETICAL MASTER LIST — WESTCHESTER/Contreras v. Miscioscia