Plaintiff(s), Index No Defendant(s).

Transcription

1 SUPREME COURT - ST ATE OF NEW YORK TRIAL/IAS TERM. PART 43 NASSAU COUNTY PRESENT: Honorable James P. McCormack Acting Justice of the Supreme Court 1495 LINCOLN PLACE LLC, Plaintiff(s), Index No against- LINDA GRIFFIN, as Representative of the ESTATE OF ALPHONSO FRANCIS, and LARINZO F. CLAYTON, Motion Seq. No. : 002 & 003 Motion Submitted: 2/8/12 Defendant(s). The following papers read on this motion: Notice of Motion/Supporting Exhibits. Notice of Cross Motion/Supporting Exhibits... Affrmation in Opposition... Reply Affirmation... In this declaratory judgment action, both sides seek summar judgment and a declaration in their favor. This Cour declares that the Letter of No Objection at issue herein does not satisfy the requirement of the paries' Letter of No Objection Escrow Agreement. Plaintiffs further request, for an Order releasing the $ from escrow to it, is summarily denied. The Estate of Alphonso Francis is the seller of property at 1495 Lincoln Place, Brooklyn New York, and plaintiff is the buyer; According to the contract of sale, the Estate was to deliver

2 at closing: a Certificate of Occupancy or other required certificate of compliance, or evidence that none was required, covering the building and all of the other improvements located on the property authorizing their use as a three family dwelling. (Contract, par. 16(b)). The building at the premises does not have a certificate of occupancy because it was constructed before Plaintiff states that it was interested in purchasing the property if the building thereon was strictly residential, as described in the contract of sale. According to plaintiff, residential property of up to three units is classified for tax purposes as Class 1 property and taxed at 6% of market value, while "mixed use" propert is classified as Class 4 property and taxes are assessed at 45% of market value. The classification of the property also allegedly has ramifications for resale because the loan-to-value ratio for a "mixed use" property is lower than that for a residential property. Plaintiff notes that after the original construction of the building, it was altered so as to eliminate the store and to convert the area that had been used as a store into a portion of the residential unit on the first floor. Plaintiff sought from the seller evidence that the status of the premises was strictly residential. At closing, the paries executed a Letter of No Objection Escrow Agreement ("the Agreement"), pursuant to which the Estate was to obtain, within 30 days from the date thereof a Letter of No Objection from the NYC Dept. of Buildings that the premises use as a Three (3) Family Dwelling notwithstanding the Store listed on the 1 sl floor on fie at the Building Dept, or in the event that said Letter of No Objection canot be obtained seller shall undertake to obtain a Certificate of Occupancy.

3 In addition, Seller s attorney, defendant Larinzo F Clayton, was to hold $ in escrow pending delivery of the Letter of No Objection or Certificate of Occupancy to the buyer attorney. The Letter of No Objection that the Seller obtained is at the hear of the paries' dispute herein. It states: There is no Certificate of Occupancy for this premise. However Deparment of Housing Preservation and Development records of MDR # show 3 ' class A' dwellng units for this premise and 1 cards show that this premise has 3 aparments and a store (UG6). Therefore, the Deparment has no objection to a 3-family dwelling and a store (UG6 use) at the above referenced premise. In this declaratory judgment action, defendant Griffn as representative of the Estate seeks summar judgment in her favor, on the grounds that the Letter of No Objection satisfies the requirement of the Agreement. Plaintiff rejects this interpretation, and seeks summar judgment that the Estate has failed to satisfy the Agreement, and it is entitled to the escrow monies. Summary Judgment Standard Summar judgment is the procedural equivalent of a trial (SJ Capelin Assoc., Inc. v Globe Mfg. Corp. 34 NY2d (1974)). The function of the cour in deciding a motion for summar judgment is to determine if triable issues of fact exist (Matter of Suffolk County Dept. of Social Servs. v James M 83 NY2d 178, 182 (1994)). On a summary judgment motion in a declaratory judgment action, the court should declare the rights of the paries (200 Genesee St. Corp v City of Utica 6 NY3d 761 (2006)).

4 Contract Principles The fundamental, neutral precept of contract interpretation is that contracts are construed in accord with the paries ' intent (Greenfield v Philes Records 98 NY2d 562, 569 (2002); Maser Consulting, PA v Viola Park Realty LLC 91 AD3d 836 (2nde Dept 2012)). Not merely literal language, but whatever may be reasonably implied therefrom, must be taken into account (Sutton v East Riv. Sav. Bank 55 NY2d 550, 555 (1982)). Discussion The language at issue in the Agreement is "use as a Three (3) Family Dwellng notwithstanding the Store listed on the 1 sl floor on fie at the Building Dept." The question presented is whether "no objection to a 3-family dwelling and a store " as set forth in the Letter of No Objection, satisfies the Agreement. In this Court' s view, it does not. The crux of the inquiry is the meaning of the word "notwithstanding" in the Agreement. According to Webster s Third New International Dictionary (1961), "notwithstanding" means without prevention or obstruction from or by; in spite of' (Premier Car Rental v Government Empls Ins. Co. 223 AD2d (2 Dept 1996); see also Yan-Min Wangv UNC- School of Medicine, 116 SE2d (NC, Court of Appeals, 2011); Record Town Inc. Sugarloaf Mils Partnership of Georgia 301 Ga App (Ga App 2009)). In short the Agreement requires a No Objection Letter authorizing the use as a three-family dwellng without prevention by, or in spite of, the store listed on the 1 sl floor. The Letter of No Objection does not satisfy the requirement because it contains no objection to "a 3-family dwellng AND a store (emphasis added). Based on the foregoing, the motion for summar judgment by defendant Griffin as

5 representative of the Estate is denied, and plaintiffs cross-motion for summary judgment is granted. The Court declares that the Letter of No Objection produced by the Estate does not satisfy the paries ' Agreement. Plaintiffs additional request for an order releasing the $ held in escrow by the Estate s attorney, defendant Larinzo F Clayton, is summarily denied, as it is unclear on this record whether such an order would impose an unenforceable penalty (see Truck Rent- Ctr, Inc v Puritan Farms 2 41 NY2d (1977)). This constitutes the Decision and Order of the Cour. Dated: April 18, 2012 Mineola, N. Y. ENTERED APR MA8AU COUNTY COUNTY CLERK' S OFFICE