Wexler v. Ambalo — freecase.ai

Full text

Wexler v. Ambalo

Wexler v Ambalo 2024 NY Slip Op 31220(U) April 9, 2024 Supreme Court, Kings County Docket Number: Index No. 536903/2023 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 04/09/2024 02:21 PM INDEX NO. 536903/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/09/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OT KINGS : CIVIL TERM: COMMERCIAL 8 ---- . -----.-·---· -------·--- · ·-·-.----- ·--.---- .x AA.RON WEXLER and RICK KAMINER, Plaintiff s, Decision ~hd order

- against - Index No. 536903/202 3

DAVID AMBALO, 4 683 PARK DA LLC, SPRINGFIELD 141 LLC, and JOHN DOES and JANE DOES #¹-10, the last 10 name·s being fictitious and unknown to the plaintiff s, Defendant s, April 9, 2024 ----·--·· ---------· - ·.-·----.--. -.--------- --·----x· PRESENT: HON. LEON RUCHELSMAN Motion Seq. #1 & #²

The defendant s have moved pursuant to CPLR.§321 1 seeki,ng to

dismiss the complaint for the failure to allege any causes of

action. The plaintiff has cross-mov ed seeking partial summary

judgement . The motions have been opposed respectiv ely. Papers

were submitted by the parties and arguments were held. After

reviewing all the arguments this court now makes the following

determina tion.

According to the verified complaint the plaintiff Aaron

Wexler owns 52,5% of an entity called 2351 Managemen t LLC,

plaintiff Rick Kaminer owhs 17.5% and the defendant David Ambalo

Owns 30% Of that entity. That entity is a 90% owner of 2351

Pacific Street located in Kings CoUhty. The ~emaining ten

percent is owhed by Twinnies LLC, which is owned by Wexler and a

non-party . Moreover, defendant Ambalo is the sole ow-ner o.f 46_83

Park DA LLC, which is the sole member of Springfie ld 141 LLC,

which owns a 50% ownership interest in the pr'operty located at

4683 Park Avenue in Bronx County. The other 50% owner is Forrest

FILED: KINGS COUNTY CLERK 04/09/2024 02:21 PM INDEX NO. 536903/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/09/2024

Footnotes

[1] of 5 [* 1] Equitie•s LLC, which is 'Owned by the plaintif fs. On April 5, ·2023: the parties entered .into a: settleme nt agreeme nt whereby Ambalb would become the sole own:er of 23til Pacif .:l..c while the pla'inti£ fs would beco_me the sole owners of 46:-S3 Par·k and that further We·xier would pay Ambalo $500,000 . The verified cornpiai nt alleges. that Ambalo. repudia ted the agreeme nt by notifyin g the plaintif fs he would not be transfe· rring any -of his :Shares because· the closing q.id not occur by the closing date. The plainti ffs _commenced this action and have asse;.rted four caus.es of action, namely for speci,fic performa nce.,, breach of contrac t, expecta tion damages and tortio1,is intE?arfe .tence. The verified complai nt ~ll~ges tl:1.e plaintif fs sat.i:S.fi ed all the co.ndi tions necessar . y .f.or . the. tran.sf.e r and the defenda nt unilate rally brea.ched said a_gr~eme nt. The defe-nda nts .have now :moved s~-~ki_ng t_o di.~mis9 the complain t. on the- grounds no breach_ of_ the settleme nt ag.reer_ne nt occurred becat.lsEi" the pla_ihti ffs f.ailed to. satisfy necessa ry condi tioris pr·ecede nt . The plainti ff .;_i have c ro ~:s.-moved see kin:g a <;ie:i;;"ermina:t-ion t:he defenda nt must comi:ily with the se-ttlem ent agreeme nt. As noted the motions a::re> ·opp_qsed . Conclus ions o.f: Law It is well s·e•ttled that upon a· motion tq di.smis-s the court must determin e, accept.ih g th!i:!• alleg.ati ons of the complai nt as true, wbethe·r tn-e p.iarty can succeed upon any reafrnnab 1e· vi~w o-f 2 [* 2] ..

[2] of ------ ·-·-··- ·-····- --·--- 5 ------ ------ ------ ------ - those facts· (Pere.z -v. Y & M .Tr.anspo·rtati on Co.rporati:0n;- 219 AD3q 14.49, 1.96 NXS3d 145 [2q. pept., 202~]). Further, all the allegations· in the complaint a·te deemed true and all reasonahie inference.s m-c;1.y be tjrawn _in fC;:J.y.or o.t the p.lain.t_j,ff (.ArchLva1 Ihc .. , v. 177 Realty Corp., 220 AD3d 909, 198 NYS2d 567 [2d Dept., ZOZ3 l ) . Whether -the complaint will -late.r survive a ·motion for -summary judgment, or whe.ther the pla.intiff will ultimately be able t.o prove its claims, of cours.$, plays no. part in the detE;Jr~inatiqn , of .a- pre...,_discove.r y CPLR §·~211 motion to dismiss ( ~ . Lam v. Weiss., 219 AD3d '7:13 ,. 195 N':i;'S3d 4.s·s [ 2d Dept., .'2023)).. The settiemettt agr.e.ement .provided that, UJ?On s.at,isfa.ction o.f a.11 conditio.ns precedent, the closing would occ:ur .on 9r b~for~ one hundred and t"l,renty· days from the date of execution (see, Settlement Agreement, j2 [NYS-CEF D.oc. N.Q. ?J) .. Section 8 qf the .agreement states that ':'Ambalo shall have the option o.f cancelling this Agreement should the i terns provided in section s., 6 .and 7 herei.n- .not be· complied w.i.th'r (:id).. Furtner, Section 13 of the agreement states that ~'Wexler shall pay to Arribalo the net sum of ·Five H.uttdred Thousand Doii:ar:s (.$50.d, .000. 0-0 j at or prior to Glps,ing (the "Payment"), by ce.rti'fied ch.eek or wire.. Should Wexler fail to ·make this Payment .by the ciosing Deadli_n.e, then tp.i.s Agreement shall be null and void, and the Parties shall retain all of their ri9hts and obl~gations prior to this 3

[3] of 5 [* 3] Agreement " (id). There is no dispute that the plaintiff s failed to satisfy all the condition s precedent contained in paragraph s 5, 6 and 7 and failed to pay Ambalo $500,000 pursuant to the agreement . The plaintiffs .argue that the agreement did not contain a time of the es-sence clause. Consequen tly, "Defendan ts were therefore unc:3,ble to terminate the agreement without first sending an unequivoc al notice that time is of the essence'' (see, Memorandum of Law; page

[9] [NYSCEF Doc. No~ 12]); How~~er, a time of the es~ence clause is not required where the contract contains a specific terminatio n provision (USA Recycling Inc .• v. Baldwin EndiCo Realty Associate s Inc., 191 AD3d 619, 139 NYS3d 529 [1 st Dept ..., 2021]) . Furthermo re, language in a .contract that states if condition s remain unfilled by a certain date then "the sole remedy of the purchaser is to elect to cancel this contract'; a time of the essence is surely implied (~r S'.guicciar ini v. Park Ridge at Terryville Associate s, 199 AD2d 376, 605 NYS2d 372 [2d De pt • , 19 9 3 J ) • In this case the agreement specifica lly stated that upon the failure to comply with the conditionE i, the defendant had the Option to cancel the contract and that if the $500,000 was not paid by the closing date then the agreement is "null and void" (see, Settlemen t Agreement , fil13 [NYSCEF Doc. NO. 2]). The plaintiffs argue the. defendant s terminated the agreement 4 4 of 5 [* 4] prematurely. Thus, defE;!.ndan,t' s :r:-ep:i;,-eBent·ative, Eli Ambalo, sent _ap e~ail on August 10~ 2023 that purported to tancel the settlement agreement (see, NYSCEF Doc. No. J.A) , However, ·Eli .Arribalo- was .not a party t.o the. agreement .-?3-.nd the-re: are: surely questions wh_ether he had the authority to so act. In any event on September 11, 2.0-23 counsei" for David Ambalo sent -a lette.r to_: plaintiffs indicat.1.n9 that more than on~- :hundre:q. and twenty _days. had passed arid the. plaintiffs had failed to satisfy the ccindi tidris precedent and thus the -a-greetnent was void (.§.§§., NYSCJ~]F Doc. No. 7) •. Thqs, the defendant d.ii::i not have to delay termination by first serving ·a time ·-of the essence letter. Rather.,. termi·nation: was automatic upon the p.laintif•fi s failure to satisfy the. conditions or pay Ambalo. Therefore,- .Ambalo's termination -occur-.r·ed after one hundr:ed and twenty d.ays anq the agreement terminated at that juncture. There- can be_ no causes ·Of ac:tion that flow therefrom. Thus, the cte:eendant's motion seeking to dismiss the complaint is g--ranted. The plaintiff.' s· cros-s- motior1 is denied,. Sci ordered. ENTER: DAT.ED: April 9·, 2024 Brooklyn ·N.Y. H"on. te6~ Rue.helsman JSC 5 5 of 5 [* 5]