Opinion
8551 8552 Index 24185/15E
02-28-2019
SFT REALTY LLC, Plaintiff–Respondent, v. BANNER REALTY COMPANY, LLC, et al., Defendants–Appellants.
Samuel E. Kramer, New York, for appellants. SLG PC, New York (David Spiegelman of counsel), for respondent.
Samuel E. Kramer, New York, for appellants.
SLG PC, New York (David Spiegelman of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, Oing, Singh, JJ.
Defendants may raise a legal challenge to plaintiff's prima facie showing on the issue of its ability to close on the sale for the first time on appeal ( Bank of Am., N.A. v. Thomas, 138 A.D.3d 523, 29 N.Y.S.3d 346 [1st Dept. 2016] ).
Plaintiff concedes that it had to finance the purchase of the property. However, it did not support its motion with a mortgage commitment (cf. Piga v. Rubin, 300 A.D.2d 68, 69, 751 N.Y.S.2d 195 [1st Dept. 2002], lv dismissed in part, denied in part 99 N.Y.2d 646, 760 N.Y.S.2d 95, 790 N.E.2d 269 [2003] ).
While defendants argue the point only in passing, we note that the motion court correctly found that defendants were under no duress to agree to sell to plaintiff, given that plaintiff made no threat to take unlawful action (see Chase Manhattan Bank v. State of New York, 13 A.D.3d 873, 874, 787 N.Y.S.2d 155 [3d Dept. 2004] ).
Nor was plaintiff guilty of unclean hands, even assuming that it structured the contract for tax avoidance purposes, because defendants were "willing wrongdoers" (see Tai v. Broche, 115 A.D.3d 577, 578, 982 N.Y.S.2d 463 [1st Dept. 2014] [internal quotation marks omitted] ).
Defendants failed to raise an issue of fact whether the checks for the deposit were for some purpose other than the deposit. The checks both reference the deposit on the property, albeit each by a different address (the lot is known by two different addresses).
The court correctly found that defendants could not defeat plaintiff's right to specific performance by willingly encumbering the property after the contract was executed (see Goldstein v. Held, 63 A.D.3d 881, 882, 881 N.Y.S.2d 471 [2d Dept. 2009] ).
We leave it to the motion court's discretion to decide what if any further discovery should be permitted.