Brooklyn 5511 Mgt. LLC v. Hang Feng 5511 LLC

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Brooklyn 5511 Mgt. LLC v Hang Feng 5511 LLC 2024 NY Slip Op 34372(U) December 16, 2024 Supreme Court, Kings County Docket Number: Index No. 521763/2021 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 12/16/2024 09:19 AM INDEX NO. 521763/2021 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/16/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM:. COMMERCIAL PART 8 --------------.------.-----.----. -------.---""'· ·x BROOKLYN 5511 MANAGEMENT LLC Plaintiffs; Decision: and order

- against - Index No. 521763/2021

HANG FENG 5511 LLC, Defendant, December 16, 2024 -. - .. ---------- .-------- .-- ·-· .. ---·-.-·.------x PRESENT: HON. LEON RUCHELSMAN Motion Seq. J3

The defendant has once again moved pursuant to CPLR §3212

seeking summary judgement dismissing the lawsuit and cancelling

the Notice of Pendency. The plaintiff has opposed the motion.

Papers were submitted by the parties and arguments held. After

reviewing all the arguments this court now makes the following

determination.

As recorded ih prior orders, on April 7, 2021 the plaintiff

pu:rchaser entered into a contract with defendant seller

concerning p:roperty located at 5517 7 th Avenue in Kings County.

The purchase price was $2, 99,9, ODO and the plaintiff made a down

payment of $300,000. A rider to the contract provided that

"Seller acknowledges that Purchaser is permitted to assume the

Seller's existing underlying mo¹;tgage and Seller shall cooperate

to facilitate the process. However, if the mcirtgagec is not

assumatiLe,. purc;has.er must s:till proceed to purchase" ( see; Rider

to Contract, 'i!X [NYSCEF Doc. No. 20]) . Instead of assuming the

:mortgage and completing a mortgage i;ippl{cation required by the mor.t.gagor, the plaintiff proposed purchasing the defendant's

FILED: KINGS COUNTY CLERK 12/16/2024 09:19 AM INDEX NO. 521763/2021 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/16/2024

Footnotes

[1] of 5 [* 1] shares of the Corporatio~ to assume the mortgage.in that way. The .defendant consented, however, upon learning of negative tax consequences in the amount of $54,750, the defEcndant requested the plaintiff pay that amount to facilitate the transfer of shares. The plaintiff refused and offered $10,000. A tirne of the essence letter was sent by the defendc1.nt requiring th.e closing take place on July 30, 2021. On that date the plaintiff failed to appear. The defendant declared the contract breached and entered into another contract to sell the property to someone else. The plaintiff filed a Notice of Pendency and a summons and complaint seeking a return of the down payment or specific perto·rmance ordering a closing pursuant to the contract and attorney's fees. 'I'he defendant has moved again essentially seeking summary judgement dismissing the complaint as well as cancelling the Notice of Pendency on the grounds there are no questions of fact the complaint fails to support the Claims asserted. The plaintiff opposes the rtmtion contending there are. quest:ions bf fact whether the complaint alleges valid claims. Conclusions of Law It is well settled that ''successive motions for summary judgment should not be made based upon facts or arguments which could have been. submitted on the originai motion for summary j.udgmen t'' (see, .P. J. 3 7 Food Co:i:p . , v. Ge orqe Doul a var.is & Son Inc. 1 189 AD3d 858,. 137 NYS2d 43.7 [2d Dept,, 2020].). Thu.s, where 2

[2] of 5 [* 2] the party sufficiently demqnstrates that evidence was not available to it when the first summary judgement motion was filed then a successive: motion is prdpe~ (Hilltich Holding corp,, v. BMSL Management LLC, 175 AD3d 474, 103 NYS3d 846 [2d Dept., 2019] ) . Therefore, any testimony or affidavit of any member of the defendant, the prior tnova:nt, is insufficient to constitute new evidence since it was readily available when the.first Summary judgement motion was filed (Binar v. Litman, 110 AD3d 867, 972 NYS2d 704 [2d Dept., 2013] ) . Moreover, concerning the deposition of Mr. TO, which took place a:.fter the motion for summary judgement was filed, the case of Perretta v. New York City Transit Authority, 230 AD3d 428, 217 NYS3d 30 [Ft Dept., 2024] is instructive. Th that Case the plaintiff, Kathleen Perretta filed a summary judgement motion before the qonclusion of all discovery. The court explained that "in her rush to obtain summary judgment and to avoid the inevitable delays in discovery that resulted from the COVID-19 pandemic restrictions, plaintiff chose to rely on FOIL responses, believing that her submissions would be sufficient" (id). Summary judgement was denied ahd. the patties proceeded with diSc◊very. Following all discovery the plaintiff again mo~ed seeking summary judgement. In denying the rec:1:uest the co.urt held that "her motion was not denied "without prejudice" nor was sh.e 3

[3] of 5 [* 3] granted "leave to renew" after discovery :was complJ:ated. Having made i;hese choices in i::he litigation, she cannot now be heard to complain that she was unable to obtain the evidence necessary to support her prior motion .for summary judgment" (id). Further, the court explained that "plaintiff's renewal motion is a second attempt at summary judgment on liability, which was denied by the. court on her first motion. Her first motion was premature. She should have waited for the completion of discovery before moving for summary judgment and her renewal motion should not be granted unless the new facts resolve or eliminate: the factual issue.s foµnci by the court in denying her first motion" (id) . Likewise, in this case, the motion seeking summary judgement was filed less than two months after the amended complaint was filed, without any discovery at all. The defendant cannot at this juncture assert the deposition testimony of Mr. To is now "new" and sufficient to warrant granting summary judgement. Nor does the deposition testimony Of Mr. To eliminate all questi·Ons of fact, Thus, it i.s improper to seek renewal Of a sununary judgement based upon deposition testimony; when no explanation has been presented why the deposition could not have taken place prior to the Submission of the motion (Castillo v, TRM contr.acting 626 Li.c, 223 AD3<l 458, 203 }jY~3d 5:1 [1 st Dept., 2024]). A successive motion for surrimary judgement wo.uld be 4

[4] of 5 [* 4] appropriate where the st1ccessive motion raises different arguments and adduces evidence that was truly not available at the time the first motion for summary judgment was filed (North Fork Preserve, Inc. v. Kaplan, 68 AD3d 732, a90 NYS2d 93 {2d Dept., 2009]) or is predicateci upon events which occurred after the ·original motion for summary judgment :was filed (Citicorp Trust Bank, FSB v. Makkas, 127 AD3d 907, 7 NYS3d 379 [2d Dept., 2015]) or where the motion is based on a decision of the court of appeals rendered after denial of the first motion {Rose v. Horton Medical Center; 29 AD3d 977, 816 NYS2d 174 [ 2d Dept., 2006]) . Alternatively, a successive motion woulci be proper where the motion is made after the completion .of discovery and involves legal issues not previously ciecicied (Green Harbour Homeowners Association, Inc. v. Ermiger, 128 AD3d 1142, 8 NYS3d 705 [3d Dept. , 2015] ) . As noted, in this case the first summary judgement was prematurely filed be.fore any discovery took place. That ·strategi,c litigatiqn tactic cannot permit successive summary judgement motions to be filed based upiri simple deposition testimony that should have preceded the summary judgement motion. Therefore, the motion seeking summary judgement is denied. So ordered. ENTER: .DATED: December 16, 2024 Brooklyn .N.Y. HOn. Leon Ruchelsman JSC 5

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