The opinion
Titan Capital ID, LLC v Mendel
2026 NY Slip Op 30943(U)
March 10, 2026
Supreme Court, Kings County
Docket Number: Index No. 524272/2025
Judge: Peter P. Sweeney
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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This opinion is uncorrected and not selected for official
publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.5242722025.KINGS.001.LBLX000_TO.html[03/20/2026 3:46:01 PM]
FILED: KINGS COUNTY CLERK 03/11/2026 11:24 AM INDEX NO. 524272/2025
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/11/2026
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS, PART 73
------------------------------------------------.----------------------X
TITAN CAPITAL ID, LLC,
Decision and Order
Plaintiff, Motion Sequence 1 and 2
-against- Index No.: 524i;Glpo25
HENDEL MENACHEM MENDEL A/KIA MENDEL MENACHEM
All/KIA MENACHEM HENDEL,
Defendant.
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The following e-filed papers read herein: NYSCEF Doc. Nos.:
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affinnations) Annexed._ _ _ _ _ _ _ _ __
Opposing Affidavits (Affinnations)
Affidavits/ Affinnations in Reply _ _ _ _ _ _ _ _ __
Other Papers:
On February 25, 2022, plaintiff and defendant signed an Agreement of
Purchase and Sale for the sale of the subject premisel? for the sum of
$3,600,000, with a closing date to occur on or before June 2, 2022. Defendant
tendered a deposit in the amount of $360,000, but was unable to close at that
time. In May 2022 the agreement was amended to provide for a closing date of
August 2, 2022. Defendant had to pay another $360,000 as an additional
deposit and the purchase price was increased to $3,625,000. Defendant could
not close at that time either, and another amendment was signed in July 2022.
A third, fourth and fifth amendment were entered into, calling for additional
payments and an increase in price for the premises. A letter advising that time
was of the essence and plaintiff was ready to close was sent February 20, 2025,
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and another one sent May 23, 2025 calling for a closing June 30, 2025.
Defendant failed to appear at the closing.
Plaintiff thereupon commenced this action for judgment declaring that
defendant was in default of the contract of sale and subsequent amendments
thereto, and declaring that all deposits and payments tendered were forfeited
in accordance with the contract and amendments. In addition, plaintiff sought
an injunction enjoining defendant from encumbering the premises, including
filing a notice of pendency.
In his answer, defendant's counsel asserts that plaintiff negotiated the
contract of sale and the amendments directly with defendant, not through
counsel. Further, it is alleged defendant was not versed in buying real estate,
was not fluent in English, and did not have funding to close, facts known to
plaintiff. Plaintiff should not be heard now to retain over $2,000,000 in deposits
and payments, causing defendant great injury. Defendant asserts he should be
permitted to close under the terms of the original contact of sale and otherwise
be refunded the full amount of the deposits and payments tendered.
In Motion Sequence 1, plaintiff moves for summary judgment awarding it
summary judgment declaring defendant in default of the contract of sale and
amendments thereto; declaring that the deposits and payments made by
defendant, totaling $2,420,000, should be the rightful property of plaintiff as
liquidated damages; and enjoining defendant from encumbering the subject
property. Plaintiff contends that where, as here, there is an unambiguous
contract to purchase real property and a defendant fails to close after a time of
the essence letter, summary judgment could be granted to the seller, and the
seller can keep the deposit paid as liquidated damages. Since defendant has
failed to raise a question of fact,- it is argued, plaintiff is entitled to summary
judgment.
Defendant cross-moves (Motion Sequence 2) for summary judgment on
his second counterclaim for specific performance under the terms of the
original contract. Plaintiff, it is argued, was aware that defendant was not a
sophisticated party, lacked experience or knowledge in real estate transactions
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and was not even fluent in English. Plaintiff negotiated agreements directly with
defendant, sent threatening communications, and extracted over half of the
initial purchase price from defendant. This is not, it is contended, a traditional
10% downpayment but a case where plaintiff extracted over $2,000,000, more
than 50% of the original purchase price. The enforceability of liquidated
damages is not absolute and should not be applied here, where doing so would
permit an extreme and unconscionable windfall to plaintiff.
Nevertheless, contends defendant, he is seeking summary judgment on
his second counterclaim for specific performance under the terms of the
original contract. That would be, defendant claims, the most straightforward
and equitable outcome in this case. A payoff letter is submitted showing that
defendant can get funding to close.
"Liquidated damages constitute the compensation which, the
parties have agreed, should be paid in order to satisfy any loss of injury flowing
from a breach of their contract" (Truck Rent-A-Center, Inc. v Puritan Farms 2 nd,
Inc., 41 NY2d 420, 423-424, (1977]). "On the other hand, liquidated damage
provisions will not be enforced if it is against public policy to do so and public
policy is firmly set against the imposition of penalties or forfeitures for which
there is no statutory authority" (Truck Rent-A-Center v Puritan Farms, supra). A
liquidated damages provision has its basis in the principle of just
compensation for loss, and liquidated damages that constitute a penalty
violate public policy and are unenforceable (see Trustees of Columbia Univ. in
the City of NYv D'Agostino Supermarkets, Inc., 36 NY3d 69, 75, 2020).
In the instant case, defendant contends that plaintiff bypassed
counsel to negotiate directly with non-English speaking defendant and seeks
to retain over 67% of the original purchase price which is nearly seven times the
standard 10% down payment typically upheld in real estate law in this State.
Accordingly, there are questions of fact as to the whether the liquidated
damages should constitute a forfeiture and an unenforceable penalty, and
plaintiff's motion for summary judgment (MS 1) is denied.
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Defendant's cross motion for summary judgment on its second
counterclaim (MS 2) is also denied. Procedurally, defendant's supporting
affirmation is missing the mandatory language of CPLR 2106. Substantively, "A
party seeking specific performance of a contract for the sale of real property is
required to establish not only that he or she was ready, willing, and able to close
on the scheduled closing date, but also that the other party was in default"
(Latora v Ferreira, 102 Ad2d 838, 839 [2d Dept 2013]; see Treasure Island of
Asbury Park Self-Storage, LLC v MBAR Realty, LLC, 216 AD3d 1200 [2d Dept.
2023]). Here, specific performance is not available for a party who defaulted
on a time of the essence real estate contract.
Accordingly, it is
ORDERED that Motion Sequence 1 is denied because of issues of fact as
to whether the liquidated damages herein constitute an unenforceable penalty,
and it is
ORDERED that Motion Sequence 2 is denied since the moving party is not
entitled to the equitable relief of specific performance.
The foregoing constitutes the decision and order of this Court.
Dated: March/~2026
Peter P. Sweeney, J.S.C.
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