Opinion
No. 0164–15.
03-31-2016
Charles E. JONES, Jr., Plaintiff, v. Locki KASIOTIS, a/k/a Locki T. Kasiotis, and Eric J. Groper, Esq., as Escrow Agent, Defendants.
Marvin Newberg, Esq., Monticello, Attorney for Plaintiff. Gregory J. Tarone, Esq., Newburgh, Attorney for Defendant, Locki Kasiotis. Eric J. Groper, Esq., Monticello, Defendant/Escrow Agent.
Marvin Newberg, Esq., Monticello, Attorney for Plaintiff.
Gregory J. Tarone, Esq., Newburgh, Attorney for Defendant, Locki Kasiotis.
Eric J. Groper, Esq., Monticello, Defendant/Escrow Agent.
FRANK J. LABUDA, J.
This matter comes before the Court by way of Plaintiff's motion, pursuant to CPLR R.3212, for summary judgment. This Court, by Decision and Order dated October 25, 2015, denied Plaintiff's motion on substantive and procedural grounds. Subsequently, Plaintiff made a motion to renew. The Court heard oral argument on the motion to renew and the motion for summary judgment on February 18, 2016. By Decision and Order dated February 19, 2016, this Court granted Plaintiff's motion to renew, and restored and recalendared the instant motion for summary judgment. Due to Defendant's substitution of counsel, the Court provided the parties with additional time within which to supplement submissions in support of and in opposition to the motion for summary judgment.
Factual and Procedural Background
The parties entered into a contract of sale (hereinafter, “Contract”) on or about January 13, 2011, in which Plaintiff, herein, agreed to sell certain real property (hereinafter, “subject property”) to Defendant. The subject property is identified by Thompson Tax Map Designation as SBL: 11–1–41.6, with an address of 47 Coopers Corner Road, Monticello, N.Y. 12701. It has also been referred to at the same street address, but in Mongaup Valley, New York.
The subject property consists of approximately four acres with a single family home and garage. It is located off a fifty foot right of way on Coopers Corner Road. At the time of the sale, the subject property was encumbered by numerous liens; it was the intention of the parties that Defendant would purchase the subject property, making a payment to Sullivan County in satisfaction of a portion of delinquent real estate taxes, payment of other liens, fees and costs, assuming a modified mortgage held by Louis F. Kiefer and Jacqueline H. Kiefer (hereinafter. “Kiefer mortgage”), and assuming a judgment against Plaintiff in favor of a judgment creditor, Alice Mavoides (hereinafter. “Mavoides debt”). Pursuant to the Contract, the selling price was $228,405.85, against which Defendant received numerous credits. The Contract required that within six (6) years of the date of closing on the subject property, Plaintiff would satisfy numerous additional judgments, as specified in the Contract, in full. If Plaintiff satisfied all of the judgments as specified in the Contract within or before six years of the date of the closing on the subject property, Defendant became obligated to “reconvey back to [Plaintiff] the single family residence that is currently on the premises and which is occupied by [Plaintiff] as his residence” along with approximately two acres of property on which it sits. Contract of Sale, p. 11, ¶ 27(b), (c). Defendant was to retain approximately two acres upon which sat the garage. In furtherance of this agreement for reconveyance at the end of six years, should Plaintiff meet all of the conditions under the Contract, Defendant promised to execute a deed contemporaneously with the Contract, which deed was to be held in escrow by Defendant Eric Groper, Esq. (hereinafter, “Escrow Agent”), for future recording. Contract of Sale, p. 11, ¶ 27(c). During a Court conference held on this matter, Defendant indicated that he successfully subdivided the property as specified in the Contract.
At the time of the execution of the Contract, there was a subdivision application pending before the Town of Thompson which sought to divide the property into two approximately two-acre parcels. The parties intended for the two-acre parcel with the single family house to be reconveyed to Respondent if he satisfied the conditions of the Contract, and for Petitioner to retain the other approximately two-acre parcel.
In addition, as contemplated by the Contract, the parties entered into a lease (hereinafter, “Lease”) for the single family home (hereinafter, “Residence”), dated February 4, 2011. Pursuant to the terms of the Lease, Defendant was to lease to Plaintiff the Residence, which sat on the two acres the parties intended to be reconveyed after or within the six years period within which Plaintiff had to pay off the aforementioned debt (Thompson Tax Map Designation SBL: 11–1–P/O 41.6). The term of the Lease was for the six-years, as discussed in the Contract, commencing on the date of the execution of the Lease. The Lease states in pertinent part:
SECTION THREE—RENT
The rental fee for the demised premises is Charles E. Jones, Jr., paying off timely in monthly installments in full the nine Judgments against him, a listing of the Judgments being annexed hereto as Exhibit A. It is further understood and agreed that all judgments must be paid off within six years of the date of the execution of this lease. Tenant has a grace period of six months from the date of any delinquency on Exhibit A to cure said delinquency. [Emphasis added.]
In anticipation of there being a Lease for the subject premises, the Contract states:
A Lease shall be prepared between [Respondent] and [Petitioner] whereby [Respondent] shall be obligated as part of this agreement to pay said monthly payments on the judgments as set forth herein, in lieu of rental payments for and on behalf of [Petitioner] .... Failure to make said monthly payments as set forth herein, by [Respondent] shall be grounds for [Petitioner] to commence eviction proceedings against [Respondent], with [Respondent] being responsible for the payment of all attorney's fees, costs and expenses therewith. Contract of Sale, p. 12, ¶ 27(d). [Emphasis added.]
* * *
In the event the payments are not made as set forth herein by [Respondent] to the various judgment creditors, then, after the expiration of six (6) months from the date of said non-payment, or nonpayments, by [Respondent] to the various judgment creditors, [Petitioner] shall have the right of commencing an eviction proceeding as against [Respondent] to evict [him] from the residence that he currently occupies located on said premises. In the event of such summary proceedings ... [Respondent] shall be responsible for the payment of all reasonable attorney's fees and expenses in the prosecution of said summary proceedings. A Warrant of Eviction shall be sought by [Petitioner] to have [Respondent] evicted from said premises. Contract of Sale, p. 12, ¶ 28(b).
Based on the Contract, Lease, and supporting documents before this Court, it is understood that the parties agreed that Plaintiff would make monthly payments on the specified debts to the various creditors, totaling $1,018.37, on or before the 4th day of each month, in lieu of paying rent directly to Defendant, pursuant to the Lease, and that said monthly payments to the judgment creditors would be considered the monthly rental for the Residence.
Plaintiff defaulted on his monthly payment obligations under the Lease. Defendant subsequently filed a summary proceeding in Town of Thompson Justice Court on or about May 5, 2014, and duly served Plaintiff on or about May 7, 2014. The Notice of Petition was returnable on May 14, 2014. On the return date of May 14, 2014, Plaintiff filed a motion to dismiss pursuant to CPLR R.3211(a)(1), returnable May 28, 2014, seeking dismissal of the petition on the grounds that a defense was grounded on documentary evidence, that Defendant had no standing to commence the action, and for such other relief as the court deemed just and proper. Defendant filed an affirmation in opposition and Plaintiff filed a reply. By Decision/Order dated June 13, 2014, the Justice Court granted Plaintiff's motion, being unable to determine how the monthly rent related to the demand for past rent and therefore finding the petition facially deficient. The Justice Court further commented it was unable to resolve what it determined to be deficiencies by examining the further submissions by Defendant with his opposition.
In the summary landlord tenant in Town of Thompson Justice Court, as well as in the appeal from that court's decision to this Court, Plaintiff, herein, was the Respondent, and Defendant, herein, was the Petitioner.
Defendant timely filed a notice of appeal. In his appeal, Defendant raised five arguments: (1) the contract of sale relied upon in Plaintiff's moving papers did not constitute “documentary evidence” in support of the dismissal and the lower court's reliance on same was reversible error; (2) Plaintiff breached the terms of the lease agreement and should therefore have been evicted; (3) the non-inclusion of the specific amount of each monthly payment that remained outstanding did not constitute a facial deficiency to the petition in the eviction proceeding; (4) the lower court erred as a matter of law by considering the contract of sale as a material factor in granting Plaintiff's motion to dismiss the eviction petition; and (5) partial summary judgment for a warrant of eviction should have been granted to Defendant as there were no genuine issues of material fact to be resolved at trial. In essence, Defendant alleged that Plaintiff failed to make the agreed payments to the judgment creditors for a period in excess of six months, said failed payments amounting to $22,230.79, which computed to approximately 22 missed monthly payments. Defendant argued that Plaintiff's failure to make the aforementioned payments as specified in the Contract, and more importantly in the Lease, coupled with Plaintiff's failure to cure said default within six months thereof, constituted a breach of the terms of the Lease, giving Defendant the absolute legal right to cause Plaintiff to be evicted from the Residence and to recover the unpaid rental amount.
The summary eviction proceeding and appeal did not raise issues regarding, or allege any breach of the Contract.
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In his answering brief on appeal to this Court, Plaintiff raised the following six arguments: (1) there had be strict compliance with the statutory requirements in a summary proceeding to give a court jurisdiction and there was not; (2) the petition was facially jurisdictionally deficient mandating dismissal; (3) any ambiguity in the contract of sale or lease agreement had to be construed against Defendant because Defendant's attorney prepared the documents; (4) Defendant's brief alleged facts which were completely absent in the record of the justice court; (5) the justice court correctly considered the contract of sale when considering the motion to dismiss; and (6) Defendant never availed himself of his right to serve an amended petition. Plaintiff argued that Defendant failed to strictly comply with the statutory requirement in a summary eviction proceeding, i.e., to provide Plaintiff with a concise statement of the facts upon which the action was predicated, and that the petition in the lower court was facially jurisdictionally deficient mandating its dismissal. Plaintiff further argued that the Contract and Lease were ambiguous, and that such ambiguity had to be construed against Defendant.
By Decision and Order, dated December 19, 2014, this Court reversed the Town of Thompson Justice Court decision and order, granted Defendant's petition for summary eviction, and remanded the matter back to Town of Thompson Justice Court for proceedings consistent with this Court's decision and order and for a determination of attorney's fees awarded to Defendant's counsel for that proceeding and the appeal. This Court further ordered that Hon. Cynthia Dolan, Justice for Town of Mamakating Justice Court, would sit as the Town of Thompson Justice, in Thompson Court, for all further proceedings in the matter.
For reasons unknown to this Court, the parties did not immediately return to Town of Thompson Court to resolve the eviction case and for a determination of attorney's fees. In the interim between this Court's December 19, 2014, Decision and Order granting Defendant's appeal from Thompson Justice Court, and Plaintiff's plenary motion for summary judgment in Sullivan County Supreme Court, Plaintiff claimed to have paid off the debts referred to in the Lease and Contract. In response to Plaintiff's motion for summary judgment, however, Defendant raised procedural issues and an issue of fact as to whether a debt owed by Plaintiff's son was subject to payoff by Plaintiff. Therefore, this Court denied Plaintiff's motion for summary judgment by the October 25, 2015, Decision and Order. In response, Plaintiff paid the debt in question and filed the within motion to renew with additional submissions to cure any procedural or technical deficiencies in his original submissions.
In opposition to the motion to renew, Defendant ostensibly argues the merits of why summary judgment should not be granted, including, but not limited to his position that because Plaintiff defaulted under the Lease by failing to make timely payments and further failed to cure that default within the six-month grace period, he breached the Contract, thus relieving Defendant of his obligation to reconvey the approximately two acres and Residence back to Plaintiff upon Plaintiff's satisfaction within six years of all of the conditions enumerated in the Contract. Defendant argues that Plaintiff's default under the Lease, was also a breach of the Contract; that although the Contract gave Plaintiff six years to pay off all of the debt, the Lease default was in essence a breach of the Contract resulting in damages to Defendant, even though Plaintiff ultimately paid off all of the debts and met all of the other conditions specified in the Contract within the six year period. Defendant argues that whether the default under the Lease constitutes a breach of the contract raises a triable issue of fact, thereby defeating Plaintiff's motion for summary judgment.
During the time within which this Supreme Court action has been pending, Defendant made a substitution of counsel. On February 18, 2016, The Court heard oral argument on both the motion for renewal and the original motion for summary judgment, at which time the parties and their attorneys appeared. Defendant's previous attorney submitted an affirmation of opposition in response to Plaintiff's original motion for summary judgment; his current attorney filed a submission in response to the within motion to renew, which addressed the original motion for summary judgment as well. Nevertheless, out of fairness to both parties, the Court, by Decision and Order dated February 19, 2016, only addressed Plaintiff's motion to renew and provided additional time to the parties to make further submissions on the issues raised in the motion for summary judgment.
Discussion
On a motion for summary judgment, the movant must establish by admissible proof, the right to judgment as a mater of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]. The burden then shifts to the opponent of the motion to establish by admissible proof, the existence of genuine, triable issues of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]. In opposing a motion for summary judgment, one must produce evidentiary proof in admissible form. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman, supra at 562. It is incumbent upon the non-moving party to lay bare his or her proof in order to defeat summary judgment. O'Hara v. Tonner, 288 A.D.2d 513 [3rd Dept.2001]. Conclusory assertions, devoid of evidentiary fact, are insufficient to raise a genuine, triable issue of fact on a motion for summary judgment, as is reliance upon surmise, conjecture or speculation. Banco Popular North America v. Victory Taxi Management, Inc., 1 NY3d 381 [2004].
It is well established that on a motion for summary judgment, the court's function is issue finding, not issue determination. Barr v. County of Albany, 49 N.Y.2d 557 [1980]. All evidence must be viewed in the light most favorable to the opponent to the motion. Crosland v. New York City Transit Auth., 68 N.Y.2d 165 [1986]. In opposing a motion for summary judgment, a party must submit an affidavit from someone with personal knowledge to create a genuine triable issue of fact. Polyglycoat Center of Connecticut v. Arace's Ford Inc., 126 A.D.2d 844 [3rd Dept.1987].
In an action based on a contract, courts have held that when the construction of the agreement and a determination thereof can be reached based on the plain and unambiguous terms of the agreement, the question before the Court becomes one of law. See Janos v. Peck, 21 A.D.2d 529 [1st Dept.1964]. A contract is ambiguous and inconsistent when the language therein is “reasonably susceptible of [sic] more than one interpretation.” Natt v. White Sands Condo, 95 AD3d 848 [2nd Dept.2012]. Where a contract is unambiguous, parol evidence is inadmissible as an aid to interpretation. Joan Hanson & Co. v. Nygard Intern., 83 AD3d 447 [1st Dept.2011].
When a contract contains several distinct subjects and obligations, each of which may be executed separately or individually without reliance on other clauses or subjects, the contract should be taken distributively or separately as to each subject or obligation contained therein. See 22 N.Y. Jur2d Contracts § 267. A contract is severable where, in its nature and purpose, it is susceptible to division. Rogers v. Graves, 254 AD 467 [3rd Dept.1938] ; see also Scavenger, Inc. v. GG Interactive Software, Inc., 273 Ad2d 60 [1st Dept.2000].
The obligation to perform under a contract is excused only under limited circumstances—for example, when a breach of the contract is so substantial that it defeats the object of the parties' intentions in making the contract. Caitlyn & Derzee, Inc. v. Amedore Land Developers, LLC, 132 AD3d 1202 [3rd Dept.2015]. In a divisible contract, the obligation to perform under certain clauses will not necessarily be excused when there is a breach of another clause or provision.
Analysis
After reviewing the submissions and having heard oral argument, this Court finds there are no genuine, triable issues of fact in the instant matter. Barr v. County of Albany, supra. The language of the Contract is clear and unambiguous—the parties intended for Defendant to purchase the subject property, subdivide it, and reconvey two acres with the house back to Plaintiff when Plaintiff met certain explicit conditions under the Contract within a specified time period. There is no ambiguity concerning the Contract language or the intent of the parties regarding this obligation. Janos v. Peck, supra.
The language of the Contract is also clear and unambiguous regarding the separate and distinct Lease obligations. Rogers v. Graves, supra. The Contract, itself, required the parties to perform certain obligations. As regards Plaintiff, he was required to pay off certain specified debts within six years of the date of the contract, at which time Defendant became obligated to reconvey two of the four acres with the house back to Plaintiff. That language is absolutely clear in the Contract. The Lease, which the parties executed separately from the Contract, required Plaintiff to make payments on the debts as specified, supra, in lieu of monthly rental payments directly to Defendant. Plaintiff argues, and this Court agrees, that the obligations required of Plaintiff under the Contract were separate and distinct from Plaintiff's obligations under the Lease. This Court finds that the two clauses were necessarily separate and distinct. 22 N.Y. Jur2d Contracts, supra. This Court further finds that the requirement that Plaintiff pay off the debts within six years to fulfill his obligations under the Contract does not conflict with the requirement under the Lease that said payments be made in monthly installments under the Lease, as rent. Contrary to Defendant's argument, the two clauses are not inconsistent with each other. The Lease required payments to be made in monthly installments in lieu of rent; Plaintiff's failure to do so could result in an eviction proceeding. Defendant has not argued, and there is nothing in the Lease, that prevented or prohibited Plaintiff from accelerating said payments to the creditors.
It is undisputed by the parties that Plaintiff breached the terms of the Lease by failing to make payments thereunder for a period of almost two years. It is further undisputed that Plaintiff failed to cure said breach within the six month grace period. There is nothing in the Contract, however, and Defendant has provided no reference to any language in the Contract, indicating that a breach of the Lease (cured or uncured) or a successful eviction proceeding, constituted a breach of the Contract, thereby relieving Defendant of his ultimate obligation to reconvey the two acres and house back to Plaintiff, should Plaintiff perform the terms of the Contract. While defense counsel has expressed his opinion and argues that the parties really intended that a breach of the Lease would constitute a breach of the Contract, and therefore there is a triable issue of fact, such argument is merely speculation; the plain language of the Contract belies such an opinion or argument. Banco Popular North America v. Victory Taxi Management, Inc., supra.
The record before this Court demonstrates that Plaintiff, albeit after breaching the Lease, fulfilled his obligations as contemplated under the Contract. Defendant does not dispute that Plaintiff paid off all of the debts specified in the Contract, within the six year period. The Contract does not indicate that Plaintiff had to pay off the debts pursuant to the Lease to comply with the terms of the Contract. Defendant has refused to deed back the two acres and house on the theory that the Plaintiff's default under the Lease constituted a breach of the Contract. The terms of the Contract and Lease, however, are not dependent on one another, nor has Defendant presented evidence that they conflict with each other. Furthermore, Defendant has not presented any evidence or pointed to any language in the Contract that is reasonably susceptible to more than one interpretation. Natt v. White Sands Condo, supra. Therefore, this Court need not entertain parol evidence to determine the intent of the parties.
Defendant has not presented any case or statutory law to support his argument that a triable issue of fact exists regarding the independence of the Contract and Lease clauses contained in the Contract. Defendant has not presented any admissible evidence to support his claim that a triable issue of fact exists regarding the intention of the parties, which is clearly discernable from the Contract itself. Zuckerman v. City of New York, supra.
In sum, Defendant has presented no admissible proof or evidence regarding the terms of the Contract or the intention of the parties to raise a genuine triable issue of fact. The Contract is unambiguously clear, read as a whole, that it was the intention of the parties to facilitate a transfer of real proper and reconveyance of a portion of that real property, if certain conditions were met under the Contract. It is also clear and unambiguous that the Contract contemplated a separate and distinct Lease, which provided for a structured monthly payment of those debts in lieu of rental payments, should Plaintiff choose to make monthly payments rather than pay off the debts more quickly. It is undisputed that Plaintiff met and fulfilled the obligations of the Contract. It is also clear and unambiguous from the Contract, that Plaintiff would be allowed to live in the residence located on the subject property during the six year period of the Contract, pursuant to a separate and distinct Lease, under which he was obligated to make certain monthly payments. It is undisputed that Plaintiff failed to comply with the terms of the Lease. Pursuant to the Contract, Defendant had the right, and in fact exercised that right, to pursue an eviction proceeding against Plaintiff upon breach of the Lease and failure to cure. Defendant has pointed to nothing in the Contract or the lease, however, that indicates the parties agreed or intended that default under the Lease and eviction constituted a breach of the Contract. There is no language in the Contract to even suggest that breach of the Lease and a successful eviction constituted a breach of the Contract, even if Plaintiff were to perform all of the terms of the Contract. The Contract only required Plaintiff to pay off the specified debts within six years; it did not specify in what manner said debts were to be paid. The Lease, which governed the right of Plaintiff to remain in the residence as a tenant, specified how the debts were to be paid to be in compliance with the Lease, only, as it represented a monthly rental. In fact, had Plaintiff not defaulted under the Lease and paid off the debts in less than six years, Defendant would have been obligated to reconvey the residence and two acres back to Plaintiff prior to the expiration of the six year period and the Lease would have terminated. Defendant has offered no admissible proof or evidence to dispute these unequivocal and clear terms of the Contract and Lease.
Based on the foregoing, it is therefore
ORDERED that Plaintiff's motion for summary judgment is granted in its entirety; and it is further
ORDERED that Defendant is directed to execute a deed, reconveying the property subject to reconveyance, to Plaintiff within 15 days of the date of entry of this Decision and Order
This shall constitute the Decision and Order of this Court.