The opinion
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
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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
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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
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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
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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
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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
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