Opinion
11141 Index 158967/17
02-27-2020
RAPSON INVESTMENTS LLC, et al., Plaintiffs–Appellants, v. 45 EAST 22ND STREET PROPERTY LLC, Defendant–Respondent.
Adam Leitman Bailey, PC, New York (Jeffrey R. Metz of counsel), for appellants. Holland & Knight LLP, New York (Robert S. Bernstein of counsel), for respondent.
Adam Leitman Bailey, PC, New York (Jeffrey R. Metz of counsel), for appellants.
Holland & Knight LLP, New York (Robert S. Bernstein of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Andrew S. Borrok, J.), entered March 11, 2019, which granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiffs' cross motion for summary judgment, unanimously affirmed, with costs.
Given that plaintiffs do not deny that they were in breach of their respective purchase agreements and the amendments thereto when defendant sent out premature notices of termination, plaintiffs' cause of action for anticipatory breach must fail. By definition, an anticipatory breach cannot be committed where, as here, one party is already in material breach of the contract ( Kaplan v. Madison Park Group Owners, LLC, 94 A.D.3d 616, 618, 942 N.Y.S.2d 522 [1st Dept. 2012], lv denied 20 N.Y.3d 858, 2013 WL 452285 [2013] ).
Even if we were to find the amendments to the purchase agreements unenforceable under General Business Law § 352–h because they purported to require plaintiffs to release their deposits to defendant as consideration for extending the time to close, plaintiffs still would have forfeited their rights to the respective down payments under the purchase agreements upon their defaults and admitted subsequent failure to cure ( 13 NYCRR 22.3 [k][2][vii] ).
Plaintiff's cause of action for breach of the covenant of good faith and fair dealing cannot create new contract rights or defeat express contract provisions, and therefore was properly dismissed ( Fesseha v. TD Waterhouse Inv. Servs., 305 A.D.2d 268, 761 N.Y.S.2d 22 [1st Dept. 2003] ). Similarly, a claim for unjust enrichment will not stand in the face of a written agreement ( IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 142, 879 N.Y.S.2d 355, 907 N.E.2d 268 [2009] ), and as for appeals to equity, it has long been the law of this State that "a vendee who defaults on a real estate contract without lawful excuse cannot recover his or her down payment" ( Uzan v. 845 UN Ltd. Partnership, 10 A.D.3d 230, 236, 778 N.Y.S.2d 171 [1st Dept. 2004] ).