313 43rd St. Realty LLC v. TMS Enters. LP

313 43rd St. Realty LLC v TMS Enters. LP 2026 NY Slip Op 30865(U) March 6, 2026 Supreme Court, Kings County Docket Number: Index No. 512785/2015 Judge: Robin K. Sheares 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.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.5127852015.KINGS.001.LBLX000_TO.html[03/17/2026 3:45:49 PM]

FILED: KINGS COUNTY CLERK 03/06/2026 04:22 PM INDEX NO. 512785/2015 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 03/06/2026

Supreme Court of the State of New York County of Kings PRESENT: HO GRABLE ROBI K. HEARES , J.S .C. -------------------------------------------- --- --- ----------------- X 313 4yd STREET REAL TY LLC, Plaintiff Index o.: 5127 5/2015 -against-

TMS E TERPRISES LP 313 43 rd TREET REAL TY ASSOCIATES LTD., and TEVE G . LEGUM ORD ER

Defendant . ---------------------------------------- ------------ --- --- ---------------X

After two decision and order of the Appellate Divi ion, Second Department-dated

July 5 2018 ("2018 Order") YSCEF #49), and April 26 2023 ("2023 Order") (NYSCEF

#90)-addre sing three prior orders of the Supreme Court King County (' Supreme Court")

dated February 19 2016, March 16 2016 and October 31 2019 thi matter proceeded to a

bench trial before this Court on May 7, 8, and IO 2024.

The Second Department clarified the legal tandard governing the partie ' competing

claims regarding entitlement to the down payment. The 2018 Order affirmed the Supreme

Court prior determination denying the Defendants-Seller motion for summary judgm nt

dismissing the complaint and clarified the issues to be determined at trial. The Second

Department tated : "A a general rul , to prevail on a cause of action for the return of a down

payment on a contract for the ale of real property the evidence must demonstrate that the

eller wa not ready willing and able to perform on the law day" (see Cohen v. Kranz; 313

43rd St. Realty, LLC v. TMS Enters., 163 AD3d at 514, LP· Imperatore v. 329 Menahan St.,

LLC, 163 AD3d at 514). [* 1] 1 of 4

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The Second Department further stated : ' imilarly, to prevail on a cau e of action that a

buyer breached a contract of sale and that the seller wa entitled to retain the down payment,

the eller must establi h that he or she was ready willing, and able to clo eon the law day"

(see 533 Park Ave. Realty, LLC v. Park A ve. Bldg. & Roofing Supplies, LLC, 156 03d 744

746-747· ehmadi v. Davi , 95 AD3d 1181 , 11 5). Accordingly, the central i ue for

determination at trial wa whether the Defendant -Sellers were ready willing and able to

perform on the law day.

At trial the Plaintiff-Buyer called four witne e : Barry Shi gal a venture capital

investor Jeffrey Edelman, the Plaintiff-Buyer's transactional attorney; Yo ef treicher an

investor in 313 43 rd Street Realty LLC; and Eli Tabak, own r of the Blue tone Group and a

lender in commercial real estate tran action . The Defendants-Sellers called one witness Terry

Lazar(' Lazar" ) the managing partner of both defendant entitie - serving a principal of the

ownership entity and principal of the tenant a urgical center. The Plaintiff-Buyer al o read

portion of Lazar' October 18 201 examination before trial into the record .

It is undisputed that thi action ari e from two nearly identical contract of ale both

executed on June 25 2015 . The total down payment wa $680 000.00 ( ix hundred and eighty

thousand dollars). Of that amount , 200,000.00 (two hundred thousand dollars) wa released

to the Defendants-Seller by the Plaintiff-Buyer without con ultation with counsel leaving

4 0,000.00 (four hundred and eighty thou and dollar) in e crow .

The contract et an initial clo ing date of Septemb r 8 2015 , which was extended to

September 22, 20 I 5 upon relea e of the 200 000 .00 (two hundred thou and dollar ). l t is

undisputed that tin1e wa not of thee sence with resp ct to eptember 22 2015.

Two principal di pute were explored at trial: [* 2] 2 of 4

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(1) that the lea e associated with the premise wa terminated by Lazar one day after contract

execution but the Plaintiff-Buyer wa not informed of this termination until July 8 2015-

one day after the $200,000.00 (two hundred thousand dollars) wa relea ed; and

(2) that on September 25 2015, three day after the extended clo ing date, th Defendant -

Sellers' attorney sent a time-of-the-e ence letter by regular mail cheduling a closing for

October 7, 2015.

The parties do not dispute the exi t nee of the two written contracts. The contracts

contained an offer acceptance, consideration and mutual a ent- thereby forming valid and

enforceable agreement (see Kowalchuk v. Stroup 61 A.D.3d 118 121 (2d Dept. 2009)). With

the agreed extension , the operative law day for purpose of performance was September 22,

Although substantial te timony focu ed on collateral disputes, thi Court's

determination turns on whether the Defendants-Seller were ready willing, and able to close

on eptember 22 , 2015 - the only date that there exi t a me ting of the minds· a valid

contract.

Upon consideration of the te timony and evidence presented the Court finds that the

Defendants-Sellers failed toe tablish that they were ready willing, and able to clo eon that

date. The evidence demonstrat d that no closing occurred on September 22 2015 . The

Defendants-Sellers presented no documentary or testimonial proof that they appeared for

closing, tendered p rformance or otherwi manife ted readine to clo e. In tead , three days

later-on September 25 , 2015- the Defendant -Sellers sent a time-of-the-es ence letter

scheduling a new closing date of October 7 2015.

On September 22 , 2015 , the Defendant -Seller bore the burden of e tablisbing that [* 3] 3 of 4

FILED: KINGS COUNTY CLERK 03/06/2026 04:22 PM INDEX NO. 512785/2015 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 03/06/2026

they were ready willing and able to perforn1. They failed to meet that burden.

Accordingly, pursuant to the mandat and controlling legal tandard set forth by the

Appellate Divi ion, Second Department, thi Court finds that the D fendants-Sellers, TMS

Enterprises LP 313 43 rd Street Realty Associates LTD ., and Steven G. Legum were not ready,

willing, and able to close on the law day of September 22, 2015. The Plaintiff-Buyer, 313 43rd

Street Realty LLC is therefor entitled to the return of their full down payment in the amount

of 680,000.00 ( ix hundred and eighty thou and dollars).

Final judgment is awarded in favor of Plaintiff-Buyer and against Defendants-Sellers

in the amount of $680 000.00.

This con titute the decision and order of the Court.

Dated: March b, 2026 ENTER:

Hon .

Robin K. Sheares, JSC~ [* 4] 4 of 4