Rokach v. Arlick

Rokach v Arlick

2025 NY Slip Op 31747(U)

May 13, 2025

Supreme Court, Kings County

Docket Number: Index No. 517273/23

Judge: Steven Z. Mostofsky

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.

WILED: KINGS COUNTY CLERK 05/1 3/20 25 01:1 INDEX NO. 51727 3/202 3

8 Pi

NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 05/13 /2025

At an IAS Term, Part 9 of the Supreme

Court of the State of New York, held in and

for the Count y of Kings, at the Courthouse,

at 360 Adam s Street, Brooklyn, New York,

on the 13_ day of May, 2025.

PRE SEN T:

HON. STEVEN Z. MOST OFSK Y,

Justice.

---------------- --- ------------------ --- --- --- --- --X

DANIEL ROKACH,

DECIS ION, ORDE R, AND JUDGMENT

Plaintiff,

-against- I

Index No. 517273/23

JASON ARLIC K,

Mot. Seq. Nos. 1-2

Defen dant.

---------------- --- ------ ------ --------- ------ --- --X

The following e-filed papers read herein:

NYSC EF Doc Nos.:

Notice of Motion/Cross Motion and

Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ _ _

_ 13-58; 62-98

Opposing Affid avits (Affinnations )_ _ _ _ _ _ _ _ _

_ 99-102

Affidavits/Affirmations in Reply _ _ _ _ _ _ _ _ _ _

_ 104-111

In this action for speci fic perfo rman ce of a contr act for I

the sale of real prope rty,

defen dant Jason Ar lick ("def endan t") move s for ( amon g

other rel,ief) summ ary judgm ent

I

dismi ssing the comp laint and cance ling the under lying

notice · of pende ncy, where as

plain tiff Danie l Roka ch ("pla intiff ') cross -mov es for summ

ary judgm ent on his cause of

action for speci fic perfo rman ce (Mot. Seq. Nos. 1 and 2,

respe ctivel y).

Background

This action arises out of plain tiffs contr act to buy defen

dant's upsta irs unit, which

1s desig nated as Unit 2, Block 5496, Lot 1102 (the

"Arli ck unit" ), of the two-u nit

condo miniu m locate d at 1540 57 th Stree t in the Boro Park

sectio n of Brook lyn, New York

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NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 05/13 /2025

(the "con do") .1 Duri ng the relev ant time, nonp arty Josep

h Richter ("Ric hter" ) owned the

downstairs unit, which is designated as Unit 1, Bloc

k 5496 , Lot 1101 (the "Ric hter

unit"). 2 Also relev ant herei n is that plain tiff's contr

act with defen dant conta ined

a mortgage-contingency clause. 3

Before plain tiff could close on his purch ase of the

Arlick unit in June 2023 ,4

plain tiff's title comp any point ed out that the cond o's

by-laws requi red that the condo

board (and, by exten sion, the cond o's "rem ainin g unit I

owner," mean ing Richter) be

afforded the right of first refus al to buy the Arlick unit. 5

Defe ndan t's coun sel, though

!

disagreeing with the opini on of plain tiffs title company,

decid ed to acco rd the condo

(and, by extension, Richter) the right of first refus al for

the Arlick unit. 6 Concurrently,

however, defen dant' s coun sel set August 3, 2023 as the

time- of-th e-ess ence closing date

with plain tiff for the Arlick unit. 7 Nonetheless, plain tiff

became apprehensive that Richter

(on beha lf of the cond o boar d and as the cond o's "rem ainin

g unit owne r") might exercise

the right of first refus al for the Ar lick unit. To that

end, on June 13, 2023 , plain tiff

preemptively comm ence d the instant action against defen

dant for specific perfo rman ce

and filed a notice of pend ency , to ensure that no conv eyan

ce of the Ar lick unit to Richter

would occu r in the interim.

1 Plainti

ff's "Cond omini um Unit~ Contra ct of Sale," dated

as of May 30, 2019 (as amend ed) (the "plain tiff's

contra ct") (NYSCEF Doc No. 21 ).

2

Condo minium Declar ation, dated June 10, 1998 (the

"cond o declar ation" ), page 16 (Exhibit B to the condo

declaration, Description of Units) (NYSCEF Doc No.

105).

3 Plainti

ff's contra ct,§ 22.

4

There was a four-y ear delay before the execut ion and

delive1y of plainti ff's contra ct of sale in May 2019 and

propos ed closing in June 2023. the

5 By-La

ws§ 7.2 (A)-(B)-(C), (D), and (E) (1)-(2), pages 32-34

(Exhibit D to the condo declar ation, By-La ws) (also

part of NYSCEF Doc No. 105); See the undate d email

from plainti ff's title compa ny, Madis on Title Agenc

(NYSCEF Doc No. 3 8). y

6

Defense counsel's letter to Richter, dated June 23, 2023

(NYSCEF Doc No. 47).

7

Defense counse l's letter to plainti ff's transa ction counse

l, <lated July 6, 2023 (NYSCEF Doc No. 48).

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Plai ntiff 's prem onit ion that Richter may exercise

the right of first refu sal prov ed to

be correct. In July 2023 , Rich ter exer cise d

the right of first refu sal and exec uted

a "fol low- form " cont ract with defe ndan t for the

purc hase of the Ar lick unit. 8

While Rich ter was getting read y to buy the Arli

ck unit, he was havi ng financial

difficulty payi ng the mortgage debt on his own I

unit. Two months prio r (in May 2023),

the mortgage hold er on Rich ter's unit had commen

ced a foreclosure actio n against it (the

"Richter-unit fore clos ure" ). In Janu ary 2025, the I

Rich ter-u nit foreclosure culminated in

the sale of the Rich ter unit to nonp arty 1540 57 th

Street, LLC, which is currently owned

by nonp arty Simon Ganz ("Ga nz") . 9 Acc ordi

ng to Ganz (in ,i 3 of his affidavit), he

permitted Rich ter to lease the Richter unit (now

rede sign ated as the "Ga nz unit") and to

remain a boar d mem ber of the condo (now as Gan

z's designee). 10

Meanwhile, defe ndan t and thereafter plai ntiff serv

ed the insta nt mot ion and cros s-

motion for sum mar y judg men t, respectively.

The Court hear d oral argument on

March 27, 2025 and rese rved decision.

Discussion 11

A defe ndan t selle r "mo ving for summary judg

men t dismissing a cause of action

for specific perf orm ance of a cont ract for the

sale of real prop erty ... has the burd en of

demonstrating the abse nce of a triable issue of I

fact regarding whe ther the plai ntiff buye r

was ready, willing, and able to clos e" (Point Hold

ing, LLC v Crittenden, 119 AD3d 918,

8 Richt

er's "Con domi nium Unit - Contr act of Sale,"

I

dated as of July 5, 2023 (as amen ded) (NYSCEF

9

Notice of Sale in the Richter foreclosure action Doc No. 50).

, dated Janua ry 9, 2025 ; Affid avit of Josep

Marc h 18, 2025 , if 2;Aff idavi t of Simon Ganz h Richt er, dated

,date d Marc h 18, 2025, ,r,r 2-3 (NYSCEF Doc

respectively). Nos. 79,10 1, and 102,

10 By-L

aws § 2.7 ("Eac h Unit Owner shall designate

... one [l] mem ber of the Board of Mana

Cond omin ium." ) (part ofNY SCEF Doc No. 105). gers of the

11 The

recitation of the well-established summ ary-ju

dgme nt stand ard of review is omitt ed from this

Order in the interest of brevity. Decision and

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919 [2d Dept 2014 ]). "fu addition, the defe ndan t

seller must demonstrate, prima facie,

that the plain tiff buye r was in defa ult" (534 Flatb

ush Holdings, LLC v Safa ris Props.,

LLC, 234 AD3d 732, 734 [2d Dept 2025 ]). Here, defe

ndan t estab lishe d, prim a facie, that

plain tiff was unab le to purc hase the Arlick unit

in June 2023 beca use he lack ed

a requisite loan commitment, as more fully set I

forth in the margin. 12 To that end,

defendant was entit led to (and did) resci nd plain tiff's

contract purs uant to§ 22 there of by

returning the latte r's downpayment. 13 According I

ly, defe ndan t's moti on is granted, as

more fully set forth in the decretal paragraphs belo

w (see Ashk enaz i v Miller, I 90 AD3d

668, 670 [2d Dep t 2021]; Grunbaum, 153 AD3d at

1385).

fu oppo sitio n to defe ndan t's motion and in supp

ort of his own cros s-mo tion for

summary judg men t for specific performance, plain

tiff contends that Richter lost his right

of first refusal (and henc e his cont ractu al capa city

to buy the Arlick unit) upon the

subs eque nt foreclosure of his own unit. Plain tiff's

cont entio n is unav ailin g for two

reasons; first, Ganz has designated Rich ter as a boar

d member of the condo; seco nd and

more fundamentally, Rich ter's prev ious ly exer cised

right to purc hase the Arlick unit has

nothing to do with his subs eque nt loss of status as

the own er of his own (Ric hter' s) unit.

All othe r issues not spec ifica lly addr esse d here in

have been cons idere d by the

Court and found to be eithe r without merit or acad

emic. In light of defe ndan t's prev ious

exercise of his right of resci ssion unde r § 22 of plain

tiff's cont ract and mindful of the

relevance unde r the circu msta nces of the conc ept of

shal om bay it (here, peac e in the two-

12

Capit al M's "Pre-Approval Letter," dated June 2, 2023,

to plaint iff generally stated that he met "the requirement

for a loan" for the purch ase of the Arlick unit, but specif s

ically cautioned that it did "not constitute a loan appro

(NYSCEF Doc No. 29). val"

13

The escrow accou nt check, dated June 8, 2023, in

the sum of $25,000 and made payab le to plaintiff

Doc No. 32). (NYSCEF

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unit condo), an award of atto rney 's fees or any

othe r mon etary relie f to eithe r part y is

inappropriate.

Conclusion

Accordingly, it is here by

ORDERED that in Seq. No. 1, defe ndan t's moti

on is gran ted to the exte nt that

(1) plai ntiff 's com plain t is dismissed in its entir

ety with prej udic e and without costs or

disbursements, and (2) the Notice of Pendency I

, dated June 12, 2023 , filed against

defe ndan t's unit loca ted at 1540 57th Street, Unit

2, Brooklyn, New Yor k 11219, Block

I

5496, Lot 1102 (NYSCEF Doc No. 6), is

here by stricken; and the rem aind er of

defe ndan t's mot ion is denied; and it is further

ORDERED that in Seq. No. 2, plai ntiff 's cros s-mo

tion is deni ed in its entirety; and

ORDERED that defe ndan t's coun sel is directed

to elec tron icall y serve a copy of

this Decision, Order, and Judgment with noti

ce of entry on plai ntiff 's counsel and to

electronically file an affid avit ther eof with the

Kings County Clerk.

This constitutes the Decision, Order, and Judgmen

t of the Court.

EN TER ,

. Mos tofs ky

Justice, Supreme Court

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