Opinion
2501/06.
Decided April 29, 2008.
Upon the foregoing papers, the motion by plaintiffs Alexander Kopp and Lina Kopp for leave to renew and reargue their prior motion for summary judgment is granted; however, upon such renewal and/or reargument, the prior decision and order herein, dated February 8, 2008, is adhered to.
On or about April 15, 2005, defendant Marianne Boyango entered into a written agreement with plaintiffs pursuant to which she agreed to convey to them the real property at 2112 Bergen Avenue in Brooklyn. Upon execution of the contract, plaintiffs tendered a check in the amount of $36,250 to defendant's attorney, which check constituted a down payment and part of the purchase price of $725,000. Plaintiffs assert that they were subsequently ready, willing and able to perform their part of the contract; however, they allegedly discovered that the premises was a "de facto illegal two family dwelling" because a garage had been converted into residential use without the proper municipal filings and permits. Plaintiffs allegedly demanded that defendant rectify the illegal condition by obtaining the necessary permits and approvals, but defendant refused to do so. Notwithstanding that defendant "could not convey the subject premises . . . as a legal single family dwelling as described by the Certificate Occupancy," she refused to return plaintiffs' down payment. Accordingly, in the complaint herein, plaintiffs seek money damages or, alternatively, a judgment directing defendant to convey the premises to them.
In January 2008, plaintiffs moved for summary judgment in their favor with respect to the complaint. In their motion, plaintiffs pointed out that defendant represented that the subject premises was a legal one-family dwelling and the contract of sale required her to "comply with all notes or notices of violations of law or municipal ordinances." Since plaintiffs were allegedly unable to complete the transaction due to defendant's breach of contract, they contended that summary judgment was appropriate. In a cross motion seeking dismissal of the complaint and judgment on her counterclaim for liquidated damages, defendant denied that the premises was ever occupied by two families and pointed out that she was always ready to proceed to a closing and that there was no violation of record which prevented a closing. By order dated February 8, 2008, the motion was denied and the cross motion was granted. According to a transcript of the oral argument of counsel, the court noted (at page 8) that plaintiffs' attorney is "suggesting [defendant] violated the two sections of the rider which says it's a one-family house, legal, but he's not showing me . . . what law is violated."
In seeking reargument and/or renewal, plaintiffs explain that, even after having had an engineer inspect the premises, they were unaware that there had been a garage that had been converted into residential space until they received a copy of the Certificate of Occupancy for the premises. Plaintiffs suggest that the illegal conversion of the garage voided the contract since the conversion breached covenants of the contract in which defendant represented that the premises was a legal one-family dwelling and that defendant had complied with all municipal ordinances. Plaintiffs assert that, at oral argument, the court "inquired as to the section of the New York City Building Code which served as a predicate for plaintiff's argument that the illegal conversion . . . constituted a violation of that law," but did not notice that the relevant sections of the Building Code were cited in plaintiff's supporting papers. Plaintiffs maintain that the alteration of the premises without a permit was a violation of the Building Code and a misdemeanor and, had the plaintiffs been forced to close, "they too would have been liable, been guilty of a misdemeanor and been subject to violations and exorbitant fines." Therefore, according to plaintiffs, this court erred when it concluded that plaintiffs could not cancel the contract and that defendant was entitled to liquidated damages as provided in the contract.
In opposition to the motion, defendant notes that plaintiffs could have validly cancelled the contract within 20 days if their engineer's report was "not acceptable," but they did not do so. Defendant also points out that the contract provided that the seller was to give insurable title (as opposed to marketable title) and, in this case, the title report does not indicate that defendant's title was not insurable. Defendant adds that, at no time, was a violation ever issued against the property.
Defendant indicates that, when she was constrained to sell the premises to another purchaser, the purchaser used the same title company as did plaintiffs and "title was indeed insurable."
In reply, plaintiffs repeat their contention that simply owning a home where an alteration has taken place without a proper permit is a violation of law and that it is not necessary for a "notice of violation" to have been issued; thus, defendant could never have performed her contractual obligations since she was obliged to transfer the premises in compliance with all governmental regulations.
Plaintiffs' motion, which is denominated as one for leave to renew and reargue, is not based on new facts ( see CPLR 2221 [e]; Trahan v Galea , 48 AD3d 791 ). Thus, the motion is, in actuality, one for leave to reargue. 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 ( see CPLR 2221 [d]). In the instant motion, plaintiffs assert that this court "overlooked the controlling principals [sic] of law" that the conversion of the garage at the premises into residential use without a permit was a violation of the New York City Building Code and that plaintiffs were not required to accept title to the premises where such violation existed. In the instant motion, as in their original motion, plaintiffs rely upon paragraphs "11 (a)" of the contract and paragraph 15 of the contract rider. Paragraph "11 (a)" required defendant, as seller, to "comply with all . . . notices of violation of law". Because there was and is no evidence that a violation was ever issued by the New York City Department of Buildings or any other governmental agency, plaintiffs' reliance upon paragraph 11 (a) of the contract is misplaced ( see Spratt v Chiulli, 212 AD2d 589). Moreover, in paragraph "15" of the rider, the seller warrants that the subject premises is a legal one-family dwelling. While plaintiffs suggest that the conversion of the garage was "illegal," that contention does not alter the fact that the premises is zoned for single-family use. Plaintiffs' assertion that any deviation from the original construction of a building without a permit, even one where no violation has yet been issued, would render the zoning use "illegal" is unsupported by the law and facts. Accordingly, the prior decision and order herein, which denied plaintiffs' motion and granted defendant's cross motion, is adhered to.
The foregoing constitutes the decision and order of this court.