Opinion
01998/10.
September 21, 2010.
Eric Levine, Esq., Wolf Haldenstein Adler Freeman Herz LLP, New York, NY, Attorney for Plaintiff and Counterclaim Defendants.
Matthew Bondy, Esq., Mishaan Dayon Lieblich, New York, NY, Attorney for Defendant and Counterclaim Plaintiff.
In this action by plaintiff Sephardic Seniors Citizens Lodge (SSCL) against defendant Mal Serure for breach of a contract to purchase real property, SSCL and the additional defendants on the counterclaims Murray Dweck, Leo Picciotto, and Wolf Haldenstein Adler Freeman Herz LLP move for summary judgment: (1) in favor of SSCL on its complaint, (2) dismissing the counterclaims interposed by Mal Serure against SSCL, Murray Dweck, Leo Picciotto, and Wolf Haldenstein Adler Freeman Herz LLP, and (3) declaring that Mal Serure is not entitled to a return of the down payment which he provided to SSCL. Mal Serure cross-moves for summary judgment: (1) on his first counterclaim for a judgment against SSCL in the amount of $550,000, (2) on his second counterclaim for a judgment: (i) declaring that he is entitled to the return of the $550,000 down payment which he provided to SSCL and the $100,000 released therefrom, (ii) decreeing that SSCL direct the release of the down payment to him, and (iii) directing Wolf Haldenstein Adler Freeman Herz LLP to release the down payment to him, and for a judgment against SSCL for the $100,000 released deposit, (3) on his third counterclaim for a judgment against Murray Dweck and Leo Picciotto in the amount of $100,000, (4) on his fourth counterclaim for a judgment against Murray Dweck and Leo Picciotto in the amount of the costs and expenses incurred by him in enforcing the guaranty, including but not limited to any legal fees, to be determined, plus interest on the released $100,000 deposit as provided in the guaranty, and (5) awarding him costs, disbursements, interest, and attorney's fees.
SSCL is a non-profit corporation that operates a social club and community center in Brooklyn, New York, for senior citizens of mostly Sephardic/Jewish ethnicity. On July 17, 2008, SSCL and Mal Serure entered into a Real Estate Purchase Agreement (the agreement), whereby Mal Serure, as the buyer, agreed to purchase real property located at 895 Ocean Parkway, in Brooklyn, New York, from SSCL, as the seller, for a price of $5,500,000. Upon the execution of the agreement, Mal Serure, pursuant to section 2 of the agreement, delivered a check for $550,000 made payable to SSCL's counsel, the law firm of Wolf Haldenstein Adler Freeman Herz LLP, as escrow agent, as a down payment to be held by it in escrow, pending the closing of the sale or its termination.
Under section 2 of the agreement, SSCL was entitled to have $100,000 of the down payment that was paid into escrow released to it upon giving a personal guaranty to Mal Serure by one or more of its directors and officers, and upon delivering to Mal Serure a memorandum of the agreement fully executed in recordable form along with any affidavits or returns required to be executed by it to enable Mal Serure to record the memorandum. In accordance with section 2 of the agreement, Murray Dweck and Leo Picciotto, who are officers and directors of SSCL, executed a guaranty dated July 28, 2008, under which they, as guarantors, jointly and severally unconditionally guaranteed SSCL's present or future obligations to Mal Serure to return the initial draw down of $100,000 of the deposit paid into escrow by Mal Serure. In addition, in accordance with section 2 of the agreement, SSCL delivered the requisite executed memorandum of agreement, and Mal Serure recorded it.
Section 5 of the agreement, entitled "Conditions to Closing," separately set forth the conditions of the obligation of Mal Serure, as the buyer, and the conditions of the obligation of SSCL, as the seller, to close the purchase and sale of the property. Section 5 (a) of the agreement provided that the obligation of Mal Serure to close was subject to the satisfaction, at or prior to closing, of each of certain conditions listed therein. Among these listed conditions was that SSCL had to provide Mal Serure with required consents. These required consents consisted of giving Mal Serure a copy of the resolution of SSCL's members and board authorizing the sale to permit SSCL to convey the property to him, and any and all government approvals required for SSCL, as a not-for-profit entity, to sell the property. These governmental approvals included required consents from the New York Attorney General and the Supreme Court of New York. Section 5 (a) of the agreement specified that:
"The foregoing conditions contained in this [s]ection 5 (a) are intended solely for the benefit of [Mal Serure]. If any of the foregoing conditions are not satisfied, [Mal Serure] shall have the right at [his] sole election, either to waive the condition in question and proceed with the purchase, or in the alternative, terminate this [a]greement and receive the [d]eposit, with interest thereon."
Section 5 (b) of the agreement provided that the obligation of SSCL to close was subject to the satisfaction at or prior to closing, of each of certain conditions listed therein, including that SSCL had obtained from the Internal Revenue Service tax exempt status as a charitable organization, and that SSCL had obtained the required consents from the New York Attorney General and the Supreme Court of New York. In addition, listed as a condition to closing in section 5 (b) of the agreement (in subdivision [ii] thereof), but not in section 5 (a) of the agreement, was the condition that SSCL "ha[d] entered into a binding lease . . . between [it] and Beth Torah Congregation for the property located at 1011 Ocean Parkway, [in] Brooklyn, New York and the [l]ease ha[d] received any required Attorney General or [c]ourt approvals." Section 5 (b) of the agreement expressly provided:
"The foregoing conditions contained in this [s]ection 5 (b) are intended solely for the benefit of [SSCL]. If any of the foregoing conditions are not satisfied, [SSCL] shall have the right at its sole election, either to waive the condition in question and proceed with the sale, or in the alternative, terminate this [a]greement and return the [d]eposit to [Mal Serure] with interest thereon. In the event a portion of the [d]eposit has been released from escrow pursuant to [section] 2 herein, [SSCL] shall be obligated to reimburse [Mal Serure] for that portion of the [d]eposit."
Section 6 (a) of the agreement provided that the closing would take place on a date specified in a written notice by Mal Serure to SSCL to occur 45 days, unless extended by mutual agreement of Mal Serure and SSCL, after SSCL had: "(i) provided written notice (the Consent Notice') along with proof that all required [c]onsents to transfer the [p]roperty pursuant to the terms [t]herein ha[d] been obtained; and (ii) provided notice that it had obtained or waived obtainment of the items set for in [section] 5 (b) (ii) above." Section 10 of the agreement provided that if Mal Serure were to "default in any manner under th[e a]greement and after a 15 business days written notice to cure and failure to cure same, then the entire [d]eposit [was to] be paid to [SSCL] as liquidated damages and not as a penalty, as SSCL's sole and exclusive remedy, and the parties . . [were to] be relieved from any further liability or obligation [t]hereunder."
Section 14 of the agreement, entitled "Consents," provided as follows:
"[SSCL] agrees that it shall apply for and use its best efforts to obtain all required [c]onsents and to enter into the [l]ease within twelve (12) months from the date hereof (the Outside Date'). Upon [Mal Serure's] request, [SSCL] shall provide [Mal Serure] monthly status reports regarding its [l]ease negotiation but no more frequent than monthly. If after its good faith effort, for any reason [SSCL] has not obtained all the [c]onsents and entered into the [l]ease by the Outside Date then [Mal Serure] shall have the right any time after . . . the Outside Date to terminate this [a]greement and the [d]eposit and any interest thereon, shall be return[ed] to [Mal Serure]."
By letter dated July 8, 2009, SSCL's attorney, Eli D. Greenberg, Esq., of the Wolf Haldenstein Adler Freeman Herz LLP law firm, advised Mal Serure that in accordance with section 5 of the agreement, he was enclosing resolutions of SSCL's members and board of directors authorizing the sale transaction, consent of the Supreme Court, Kings County, and IRS acknowledgment of SSCL's tax exempt status. Mr. Greenberg, Esq., in that letter, further advised Mal Serure that with respect to the lease referred to in section 5 (b) (ii) of the agreement, he was confirming that SSCL had waived this requirement. Mr. Greenberg, Esq., in that letter, stated that SSCL had, therefore, satisfied the conditions outlined in section 5 of the agreement. Mr. Greenberg, Esq. additionally stated that such letter constituted the consent notice pursuant to section 6 (a) of the agreement, and he scheduled the closing for 10:00 A.M. on August 24, 2009, the first business day 45 days from the date of the letter.
On August 24, 2009, Mr. Greenberg, Esq. and his partner, Lisa A. Smith, Esq., of the law firm of Wolf Haldenstein Adler Freeman Herz LLP, personally attended what was to be the scheduled closing, and Mal Serure failed to appear or purchase the property at that time. By letter dated August 26, 2009, Ms. Smith, Esq. advised Mal Serure that due to his failure to appear at the closing scheduled for August 24, 2009, SSCL was declaring a closing date of September 30, 2009 at 11:00 A.M. with time being of the essence. Ms. Smith, Esq. further advised Mal Serure that in the event that he failed to close on that date, the entire deposit would be paid to SSCL as liquidated damages and the parties would be relieved from any further liability or obligation under the agreement.
By letter dated September 15, 2009, Mal Serure's attorney, Jeffrey D. Dayon, Esq. informed Mr. Greenberg, Esq. and SSCL that Mal Serure was giving notice that he was thereby exercising his right pursuant to section 14 of the agreement to terminate the agreement. Mr. Dayon, Esq. requested that SSCL immediately remit the deposit and interest thereon to Mal Serure in accordance with the terms of section 14 of the agreement. By letter dated September 17, 2009, Eric B. Levine, Esq., of the law firm of Wolf Haldenstein Adler Freeman Herz LLP, advised Mr. Dayon, Esq. and Mal Serure that Mal Serure did not have the right under section 14 of the agreement to terminate the agreement because SSCL had waived the condition of entering into the lease, and section 5 (b) of the agreement provided that the condition of entering into the lease was intended solely for SSCL's benefit with SSCL having the right at its sole election to waive this condition. Mr. Levine, Esq. further stated, in that letter, that if Mal Serure failed to close the transaction on September 30, 2009, he would be in default.
By letter dated September 18, 2009, Mr. Dayon, Esq. responded that pursuant to section 14 of the agreement, Mal Serure had the unconditional right to cancel the contract if SSCL did not enter into the contemplated lease. Mr. Dayon, Esq. stated that this right was not conditioned on SSCL's failure to waive the lease requirement, and that section 14 of the agreement was not linked in any way to section 5 (b) of the agreement. Mr. Dayon, Esq. again demanded the return of Mal Serure's deposit. Mal Serure did not appear at the September 30, 2009 "time of the essence" closing scheduled by SSCL, and he has failed to purchase the property. Wolf Haldenstein Adler Freeman Herz LLP has continued to hold the remaining deposit of $450,000, plus accrued interest thereon, in escrow.
On January 22, 2010, SSCL filed this action against Mal Serure. The first cause of action of SSCL's complaint alleges that Mal Serure has breached the agreement by failing and refusing to purchase the property, and that it is entitled to receive the remaining $450,000 deposit and interest thereon, now in escrow, as liquidated damages pursuant to section 10 of the agreement. The second cause of action of SSCL's complaint alleges that the memorandum of contract should be terminated and canceled of record pursuant to Real Property Law § 329. On March 18, 2010, Mal Serure interposed an answer to SSCL's complaint, which contains four counterclaims, and filed a summons as against Murray Dweck, Leo Picciotto, and Wolf Haldenstein Adler Freeman Herz LLP as additional counterclaim defendants. Mal Serure's first counterclaim seeks $550,000 against SSCL based upon its alleged breach of the agreement. Mal Serure's second counterclaim requests a decree that SSCL direct the release of the escrow deposit, and that Wolf Haldenstein Adler Freeman Herz LLP be directed to release the escrow deposit. Mal Serure's third counterclaim demands a judgment against Murray Dweck and Leo Picciotto in the amount of $100,000 based upon the guaranty executed by them for the released deposit. Mal Serure's fourth counterclaim seeks costs and expenses, including legal fees, incurred by him in enforcing the guaranty, plus interest on the released deposit.
In support of its motion for summary judgment, SSCL argues that Mal Serure is not entitled to a return of his down payment. SSCL contends that since it waived the condition of the lease pursuant to section 5 (b) of the agreement, and gave notice to Mal Serure under section 6 (a) of the agreement that it had fulfilled or waived the required conditions, Mal Serure has defaulted, pursuant to section 10 of the agreement, by refusing to close on the purchase of the property. In opposition to SSCL's motion and in support of his cross motion, Mal Serure contends that section 14 of the agreement entitled him to terminate the agreement and to have his down payment returned to him.
Thus, the resolution of the instant motion and cross motion turns on the interpretation of section 5 (b) and section 14 of the agreement. It is well established that where there is a written contract, clear and explicit in its terms, and the intention of the parties may be gathered from the four corners of the instrument, the interpretation of the contract is a question of law for the court to decide ( see Chimart Assoc. v Paul, 66 NY2d 570, 572; Abramo v HealthNow NY, Inc. , 23 AD3d 986 , 987; Sunrise Mall Assoc. v Import Alley of Sunrise Mall, 211 AD2d 711, 711; Waring v Dynamics Corp. of Am., 101 AD2d 772, 773). "In construing a contract, the document must be read as a whole to determine the parties' purpose and intent . . . giving a practical interpretation to the language employed so that the parties' reasonable expectations are realized" ( Sunrise Mall Assoc., 211 AD2d at 711; see also Abramo, 23 AD3d at 987; Benderson v Wiper Check, 266 AD2d 903, 904, affd 96 NY2d 855). "In cases of contract interpretation, it is well settled that "when parties set down their agreement in a clear, complete document, their writing should . . . be enforced according to its terms"'" ( South Rd. Assoc., LLC v International Bus. Machs. Corp. , 4 NY3d 272 , 277, quoting Vermont Teddy Bear Co. v 538 Madison Realty Co. , 1 NY3d 470 , 475, quoting W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162).
"[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" ( Greenfield v Philles Records, 98 NY2d 562, 569). It is the court's duty to interpret a written contract as a matter of law where it is unambiguous and the intent of the parties is discernible from the four corners of the agreement ( see Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 32). " The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent[, and that t]he "best evidence of what parties to a written agreement intend is what they say in their writing'" ( Innophos, Inc. v Rhodia, S.A. , 10 NY3d 25 , 29, quoting Greenfield, 98 NY2d at 569; see also Slamow v Del Col, 79 NY2d 1016, 1018).
Furthermore, the court must "construe the agreement[] so as to give full meaning and effect to the material provisions'" ( Beal Sav. Bank v Sommer , 8 NY3d 318 , 324, quoting Excess Ins. Co. Ltd. v Factory Mut. Ins. Co. , 3 NY3d 577 , 582). "[A] contract should be read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose" ( Beal Sav. Bank, 8 NY3d at 324-325 [internal quotation marks and citations omitted]).
Thus, ""single clauses cannot be construed by taking them out of their context and giving them an interpretation apart from the contract of which they are a part"'" ( Analisa Salon, Ltd. v Elide Props., LLC , 30 AD3d 448 , 448-449, quoting Aimco Chelsea Land v Bassey , 6 AD3d 367 , 368, quoting Matter of Friedman, 64 AD2d 70, 81; see also American Express Bank v Uniroyal, Inc., 164 AD2d 275, 277). Moreover, a "reading of the contract should not render any portion meaningless" ( Beal, 8 NY3d at 324; see also Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396, 403; Dental Health Assocs. v Zangeneh , 34 AD3d 622 , 624; Penguin 3rd Ave. Food Corp. v Brook-Rock Assoc., 174 AD2d 714, 716). "A contract should not be interpreted in such a way as would leave one of its provisions substantially without force or effect" ( Matter of John E. Andrus Mem. Home v DeBuono, 260 AD2d 635, 636; see also Strong v Dubin , 75 AD3d 66 , 69).
Mal Serure, in opposition to SSCL's motion and in support of his cross motion, relies upon the language in section 14 of the agreement which provided that "[i]f . . . for any reason [SSCL] ha[d] not . . . entered into the [l]ease by the Outside Date then [he would] have the right any time after . . . the Outside Date to terminate this [a]greement and the [d]eposit and any interest thereon, [would] be return[ed] to [him]." Mal Serure points to the fact that pursuant to section 14 of the agreement, the Outside Date was July 17, 2009, and notes that SSCL did not enter into the lease before the Outside Date. Mal Serure argues that since the Outside Date had passed by the date on which SSCL had scheduled the closing, he was within his rights under section 14 of the agreement when he terminated the contract by his attorney's September 15, 2009 letter.
Mal Serure's argument, however, must be rejected because he reads this one phrase of section 14 of the agreement in isolation as though that section was the provision which established the conditions, as opposed to simply setting the Outside Date for their fulfillment. Such an isolated reading fails to give effect to the entire agreement, nullifies section 5 (b) of the agreement, and renders section 5 (b) of the agreement meaningless since if, as contended by Mal Serure, he had the right to cancel and receive back his deposit solely because SSCL did not sign the lease for new space, then the condition was not "solely for the benefit" of SSCL and SSCL would not have had "the right at its sole election . . . to waive the condition . . . and proceed with the sale" despite the explicit language of section 5 (b). Mal Serure's construction of the agreement nullifies its distinction between section 5 (a) and section 5 (b), which set different conditions for the parties' respective obligations, and expressly provided that the signing of the lease was a condition on SSCL's performance, but did not provide that such signing of the lease was a condition with respect to Mal Serure's performance.
Section 14 of the agreement, in contrast to section 5 of the agreement, did not establish the conditions to the parties' performance. Rather, as previously noted, it merely set the Outside Date for performance of the conditions already established in section 5 of the agreement, and it stated what would happen if the conditions were not fulfilled. The plain and obvious meaning and intention of section 14 of the agreement was that Mal Serure was entitled to a return of his deposit in the event that the conditions were not fulfilled or waived.
It is well established that a party for whose benefit a condition is included in a contract may waive compliance with the condition and accept performance of the contract as is ( see W.W.W. Assoc., 77 NY2d at 162; De Freitas v Holley, 93 AD2d 852, 853; Weinprop, Inc. v Foreal Homes, 79 AD2d 987, 987). Thus, since the agreement expressly stated that the condition for signing the lease was "intended solely for the benefit of [SSCL]," SSCL had the right to waive this condition and close the sale. Moreover (as previously stated), the agreement, by its explicit language, specifically gave SSCL "the right at its sole election . . . to waive th[is] condition . . . and proceed with the sale."
The condition of the lease was, in fact, timely waived by SSCL in Mr. Greenberg, Esq.'s letter dated July 8, 2009, which was sent within 12 months from the date of the execution of the agreement, and, thus, such waiver occurred prior to the Outside Date. While section 14 of the agreement provided that Mal Serure had the right to cancel the contract for any reason if SSCL had not entered into the lease by the Outside Date, this right to cancellation was only applicable if SSCL had not already exercised its right to waive this condition under section 5 (b) of the agreement. It was not necessary for SSCL to satisfy a condition that had been waived by it, and Mal Serure, therefore, could not utilize the lack of fulfillment of an already waived condition as a basis for his termination of the agreement. The right to insist on the fulfillment of a condition in a contract "must stand or fall with the condition," and "[i]f the [condition] was waived, the [obligation to fulfill that condition] is no longer a part of the contract" ( Clark v West, 193 NY 349, 358 [1908]; see also ESPN, Inc. v Office of the Commr. of Baseball, 76 F Supp 2d 383, 389 [SD NY 1999]).
While the language of section 5 (b) of the agreement appears to be unequivocal, Mal Serure nevertheless insists that negotiations between his attorney and SSCL's attorney are significant to the interpretation of the agreement. Regarding the issue of how the condition of the lease originated, Mal Serure explains that during negotiations of the contract, SSCL expressed that it wanted the bulk of the $5,500,000 purchase price prior to delivery of possession to him because SSCL desired to use these funds for the joint development with Congregation Beth Torah, a nearby synagogue, of a property located at 1101 Ocean Parkway, some two blocks south of the subject property, in which SSCL planned to lease a portion of the developed premises from Congregation Beth Torah. Mal Serure states that SSCL's attorneys generated 10 drafts of the agreement over many months, culminating in the final executed July 17, 2007 agreement.
Mal Serure argues that during the negotiations of the agreement, his counsel, Mr. Dayon, Esq., proposed the language in section 14 which added a reference to the lease. However, that language is wholly consistent with Mr. Greenberg, Esq.'s explanation that this language was added over Mal Serure's counsel's concern that SSCL could perpetually keep the contract alive by the condition that the lease be signed. Mr. Greenberg, Esq. attests that there was never a suggestion that it would be a problem if SSCL waived the condition of the lease and was ready to close. Mr. Greenberg, Esq. also explains that the purpose of the condition of the lease was to allow SSCL to cancel the sale if it could not get particular alternative space to rent. Mr. Greenberg, Esq. asserts that consistent with this purpose, SSCL was given the right to waive this condition if it decided not to take that new space, but still wanted to sell the property. Furthermore, while Mr. Dayon, Esq. added the language referring to the lease in section 14 of the agreement, notably, in the very same draft of the proposed agreement, Mr. Dayon, Esq. added a provision to section 5 (a) of the agreement and provided revised language to section 5 (b) (ii), but did not propose adding the lease condition to section 5 (a) so as to make that condition also for the benefit of Mal Serure and not waivable by SSCL alone.
In any event, the discussions of counsel during negotiations and prior drafts of the agreement is not controlling. Rather, the language of the agreement which was ultimately reached and executed is controlling. "[E]xtrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous upon its face" ( South Rd. Assoc., LLC, 4 NY3d at 278 [internal quotation marks and citations omitted]). Here, the language in the written agreement is complete, clear, and unambiguous on its face. Section 5 (b) of the agreement unambiguously provided that only SSCL's obligation was contingent upon the lease and that this condition could be waived by SSCL.
Mal Serure argues that section 14 of the agreement stands independently from section 5 (b) of the agreement, and was intended for his benefit, and gave him the right to cancel the agreement if the lease was not consummated within one year from the execution of the agreement. Mal Serure asserts that his concern over whether SSCL obtained a lease and had a place to move was based upon his need to be assured that SSCL would vacate the subject property at the time of closing. Mal Serure's argument, however, must be rejected since if Mal Serure had intended that the agreement be conditioned upon SSCL's obtaining a lease, this condition could have been included in section 5 (a) of the agreement, along with the other conditions which were for the benefit of Mal Serure.
In construing the agreement, it is noted that in contrast to the condition of the lease, the condition to obtain governmental consents was set forth in both section 5 (a) and section 5 (b) of the agreement. The conspicuous absence of the condition of the lease as a basis for the termination of Mal Serure's performance under the agreement in section 5 (a) indicates that this was not a condition for Mal Serure's benefit. Thus, since the condition of the lease was waived by SSCL, section 14 of the agreement could not revive this waived condition. "A court may not rewrite into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, nor may it construe the language in such a way as would distort the contract's apparent meaning'" ( Stathakis v Poon, 295 AD2d 496, 497, quoting Slamow v Del Col, 174 AD2d 725, 727, affd 79 NY2d 1016; see also Barleo Homes v Tudomawr Corp., 214 AD2d 694, 695; Marine Assocs. v New Suffolk Dev. Corp., 125 AD2d 649, 652; Tantleff v Truscelli, 110 AD2d 240, 245-246, affd 69 NY2d 769).
Mal Serure further contends that the court should not grant summary judgment to SSCL because there are two clauses in conflict with each other, creating issues of fact that the trier of fact must resolve. Such contention is without merit. As noted above, where, as here, the contract is unambiguous and the intent of the parties is discernible from the four corners of the agreement, the interpretation of the contract is a question of law for the court to decide ( see Matter of Wallace, 86 NY2d at 548; R/S Assoc., 98 NY2d at 32; Abramo, 23 AD3d at 987; Sunrise Mall Assoc., 211 AD2d at 711; Waring, 101 AD2d at 773).
Thus, inasmuch as the court finds that SSCL timely waived the condition of the lease pursuant to section 5 (b) of the agreement, and section 14 of the agreement did not give Mal Serure the right to terminate the agreement following such timely waiver, Mal Serure is not entitled to a return of his $550,000 deposit and SSCL is entitled to receive and have released from escrow the remaining $450,000 deposit and interest thereon as liquidated damages pursuant to section 10 of the agreement ( see generally Venetoklis Family L.P. v Kora Devs., LLC , 74 AD3d 1057 , 1059). Consequently, summary judgment in SSCL's favor on its first cause of action, dismissing Mal Serure's first and second counterclaims as against SSCL and Wolf Haldenstein Adler Freeman Herz LLP, and declaring that Mal Serure is not entitled to a return of the $550,000 deposit must be granted ( see CPLR 3212 [b]).
While SSCL's second cause of action seeks cancellation of the memorandum of contract pursuant to Real Property Law § 329, relief pursuant to that section is not available as an executory contract for the sale of real property may be recorded if it is in recordable form ( see Real Property Law § 294 [1]; Lloyd's Shopping Ctrs. v Regent Props., 27 AD2d 894, 894 [1967]).
Since the court finds that Mal Serure is not entitled to a return of the deposit from SSCL and the guaranty furnished by Murray Dweck and Lee Picciotto was limited to $100,000 of any obligation of SSCL to return the deposit, Mal Serure is not entitled to any recovery under the guaranty. Therefore, summary judgment dismissing Mal Serure's third and fourth counterclaims as against Murray Dweck and Lee Picciotto must likewise be granted ( see CPLR 3212 [b]).
Accordingly, SSCL, Murray Dweck, Leo Picciotto, and Wolf Haldenstein Adler Freeman Herz LLP's motion for summary judgment in favor of SSCL on SSCL's complaint, dismissing the counterclaims interposed by Mal Serure against them, and declaring that Mal Serure is not entitled to a return of the down payment which he provided to SSCL, is granted. Mal Serure's cross motion for summary judgment in his favor on his four counterclaims and for an award of costs, disbursements, interest, attorney's fees, is denied in its entirety.
This constitutes the decision, order, and judgment of the court.