Consolidated Edison Company of New York, Inc. v. Cantor
Filing
35
OPINION AND ORDER re: 26 MOTION for Summary Judgment . filed by Consolidated Edison Company of New York, Inc.. For the aforementioned reasons, Plaintiff's Motions for Summary Judgment is GRANTED. Plaintiff is entitled to specif ic performance of the Agreement. The Clerk of Court is respectfully requested to terminate the motion at ECF No. 26, enter judgment in favor of Plaintiff, close the case, mail a copy of this Opinion and Order to Defendant and show proof of service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 8/30/2019) (kv) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.
I
I,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CONSOLIDATED EDISON
COMP ANY OF NEW YORK, INC.,
l 8-cv-02267 (NSR)
Plaintiff,
OPINION AND ORDER
-againstROBERTS. CANTOR,
Defendant.
NELSONS. ROMAN, United States District Judge
Plaintiff Consolidated Edison of New York, Inc. ("Plaintiff or Con Edison") filed a
Complaint on March 14, 2018 seeking specific performance of its September 27, 2017 written
agreement with prose Defendant Robert S. Cantor ("Defendant" or "Cantor"). (ECF No. 1). The
agreement pertained to the conveyance of a permanent underground utility easement grant at
Cantor's investment property located at 218 Saw Mill River Road in Greenburgh, New York. (Id.)
Presently before the Court is Plaintiffs Motion for Summary Judgment in its entirety, pursuant
Fed.R.Civ.P. 56. (ECF No. 26.) For the following reasons, the Plaintiffs Motion is GRANTED.
FACTUAL BACKGROUND
The Court presumes the truth of Plaintiffs uncontroverted 56.l statement from which it
derives the following facts. See Galindo v. Instalaciones de Tendidos Telefonicos, S.A., 508 F.
App'x 76, 79 (2d Cir. 2013). 1
Plaintiff is a corporation duly organized and existing under and by virtue of the laws of the
State of New York. Defendant was and is a resident of Westport, Connecticut. Defendant is a
1
As Defendant did not submit a Rule 56.1 statement, the Court reviewed Defendant's affidavit to see whether he
controverted any material facts and he found that he did not. Turner v. Sidorowicz, No. 12-CV-7048 (NSR), 2016 WL
3938344, at *1 (S.D.N.Y. July 18, 2016).
1
licensed real estate broker in Connecticut. Since in or about March 2000, Defendant was and
continues to be the owner in fee of real property at 218 Saw Mill River Road in Greenburgh, New
York, which is commercial investment property.
On December 9, 1971, J. & L. Rinaldi Holding Corporation, the owner of 218 Saw Mill
River Road (“the Property”) at that time, granted a renewable temporary easement to Con Edison
that permitted it to maintain underground electric transmission lines at the Property. In 2015, Con
Edison offered to buy from Defendant a permanent easement that would permit Con Edison to
continue to maintain underground electrical transmission lines at the Property.
From 2015 until February 2018, Thomas A. Toscano, Esq., of Toscano & Associates,
represented Cantor in responding to Con Edison’s offer to buy the permanent easement. From
2015 to date, Con Edison has been, and continues to be, represented by attorneys Scott A.
Levinson, Michael S. Davi, and Diep Nguyen in Con Edison’s offer to buy a permanent easement
from Cantor.
When the parties, through counsel, could not agree on the price for a permanent easement,
they sought the assistance of a mediator. The parties retained the Honorable Abraham G. Gerges
as their mediator. Justice Gerges is a retired Justice of the New State Supreme Court. As the
presiding judge in the Kings County condemnation part, Justice Gerges authored decisions on the
value of condemned properties. Before the mediation, the parties exchanged appraisals and
mediation statements.
On September 27, 2017, both parties appeared for the mediation at the offices of Mr.
Toscano with their respective counsel and appraisers. With Justice Gerges’s assistance, the parties
agreed on $225,000 as the price for the permanent easement and executed the September 27, 2017
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Agreement (the “Agreement”). Mr. Toscano drafted the September 27, 2017 Agreement. The
Agreement states, among other things, that:
Payment shall be made by ConEd to Cantor within a reasonable time from the date
hereof, but not later than December 31, 2017, or this agreement shall then be null
and void.
In the event some other or further, or more formal, documents is required to be
executed by the parties hereto, the parties hereto agree to move quickly to develop
and executed [sic] said documents by the date referenced above.
Cantor shall provide consents to the permanent easement, or a subordination
agreement, from any party with a superior interest.
(Davi Decl. Ex. 2, September 27, 2017 Agreement (the “Agreement”), ECF No. 1-1.)
At all times since September 27, 2017, Con Edison has had sufficient funds available to
pay $225,000 to Cantor for the permanent easement. After the mediation, Con Edison obtained an
updated title report on 218 Saw Mill River Road. The updated title report showed an outstanding
mortgage to HSBC Bank USA, N.A. recorded against the property. On October 5, 2017, Ms.
Nguyen sent Mr. Toscano an email attaching the updated title report and stating in pertinent part:
We obtained an updated title report recently on 218 Saw Mill River Road. As you
can see from the attached report, it appears that there is currently a mortgage on the
land (p. 14), and there is no indication that the mortgage has been satisfied. I think
you told us at the mediation that the property is free of encumbrances? If so, please
provide us the necessary documents. . . .
(Davi Decl. Ex. 5, ECF No. 28-5.)
On October 19, 2017, Mr. Toscano sent Ms. Nguyen an email responding to her October
5, 2017 email, and stating in pertinent part:
I found out from my Client that HSBC was paid off. I am getting a duplicate
Satisfaction of Mortgage for recording. I should have it in a week. Let’s proceed on
that understanding.
(Davi Decl. Ex. 6., ECF No. 28-6.)
On November 1, 2017, Ms. Nguyen sent Mr. Toscano an email stating in pertinent part:
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Please provide us copies of the Satisfaction and Recording when you have both.
We will send you updated easement shortly.
(Davi Decl. Ex. 7, ECF No. 28-7.)
On November 12, 2017, Ms. Nguyen sent Mr. Toscano an email attaching a revised draft
of the formal easement documents, and stating in pertinent part:
Attached for your review are the following: (1) easement grant;
(2) survey; (3) legal description; and (4) NY TP-584 form. Please review and let
me know if you have any questions. We will send you the transfer tax form once it
is final.
Have you received and recorded the Satisfaction? If so, please provide us with the
necessary documentation. . . .
(Davi Decl. Ex 8, ECF No. 28-8.)
As of November 12, 2017, subject to Cantor recording a duplicate satisfaction of the HSBC
mortgage, Con Edison was ready, willing, and able to proceed with the acquisition of the
permanent easement grant. On November 28, 2017, Mr. Levinson sent Mr. Toscano an email,
responding to Ms. Nguyen’s November 12, 2017 email, asking Mr. Toscano if there was “[a]ny
update.” On that same day, Mr. Toscano sent Mr. Levinson an email stating in pertinent part:
I appreciate your patience. HSBC is still processing the duplicate satisfaction of
mortgage. It was paid off such a long time ago, they had to do ‘research’. Should
be available soon. Maybe 7-10 days longer.
(Davi Decl. Ex. 10, ECF No. 28-10.)
On December 8, 2017, Mr. Toscano sent Mr. Levinson an email stating in pertinent part:
I am advised that I will have the duplicate original Satisfaction of Mortgage on
Tuesday. Please send me a final set of documents for signature by my Client.
(Davi Decl. Ex. 11, ECF No. 28-11.)
On December 8, 2017, Mr. Levinson sent Mr. Toscano an email responding to Mr.
Toscano’s December 8, 2017 email, and stating in pertinent part:
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We need a current W-9 form for whoever you want the settlement check made
payable to. Is that your firm?
(Davi Decl. Ex. 12, ECF No. 28-12.)
On December 8, 2017, Mr. Toscano sent Mr. Levinson an email responding to Mr.
Levinson’s December 8, 2018 email, and stating in pertinent part: “Yes, please see attached.” On
December 19, 2017, Mr. Davi sent Mr. Toscano an email responding to Mr. Toscano’s December
8, 2017 email, attaching Ms. Nguyen’s November 12, 2017 with attachments (see Davi Decl. Ex.
4), and stating in pertinent part:
Did you get the duplicate original Satisfaction of Mortgage?
Also, attached is the last email that I have from Diep with the draft easement grant.
Is this now final and ready for execution? If so, when can we expect to receive a
fully executed copy?
I’m on vacation next week and I’d like to get this wrapped up before I leave the
office on Friday.
(Davi Decl. Ex. 14, ECF No. 28-14.)
On December 20, 2017, Mr. Toscano sent Mr. Davi an email responding to Mr. Davi’s
December 19, 2017 email, attaching a copy of the unrecorded satisfaction of mortgage, and stating
in pertinent part:
Satisfaction is attached. We’re just waiting for the recorded version. To follow
shortly. We are checking with the Westchester Clerk’s office daily.
(Davi Decl. Ex. 15, ECF No. 28-15.)
On January 2, 2018, Mr. Toscano sent Mr. Davi an email responding to Mr. Davi’s
December 19, 2017 email, attaching a copy of the recorded satisfaction of mortgage, and stating
in pertinent part:
Attached is the recorded Satisfaction of Mortgage. We are ready to proceed. Please
send me the final form Easement, and let me know how many counterparts you will
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need signed. Then, please let me know when we can exchange the wire transfer for
the executed originals.
(Davi Decl. Ex. 16, ECF No. 28-16) (emphasis added.)
On January 4, 2018, Mr. Toscano sent Mr. Davi an email responding to Mr. Davi’s
December 19, 2017 email, and stating in pertinent part:
The current draft of the easement reflects an easement under “unimproved land”. It
is not. The easement is under a land improved by an asphalt driveway/parking area.
This is shown on the survey that you sent, so it appears ConEd staff is aware of this
fact. Please send us a revised easement, reflecting this fact.
(Davi Decl. Ex. 17, ECF No. 28-17.)
On January 5, 2018, Mr. Davi sent Mr. Toscano an email responding to Mr. Toscano’s
January 4, 2018 email, and stating in pertinent part:
The draft easement refers to an “asphalt driveway,” not to “unimproved land.” Can
you point me to the specific language to which you are referring?
Also, please provide us with Mr. Cantor’s address and social security number so
that we can prepare the execution version of the easement grant and the transfer tax
forms. Once finalized, I will email them to you. We would like 2 originals of the
documents – one for recording and one to keep for our records. You can send us
the signed documents in escrow and then upon receipt, we will send you the check.
(Davi Decl. Ex. 18, ECF No. 28-18.)
On January 7, 2018, Mr. Toscano sent Mr. Davi an email responding to Mr. Davi’s January
5, 2018 email, and stating in pertinent part:
My mistake, I sent you the correct draft, but had reviewed the 10/10 draft when
providing my comments.
I will wrap this up with the Client this week.
(Davi Decl. Ex. 19, ECF No. 28-19) (emphasis added.)
On January 9, 2018, Mr. Toscano sent Mr. Davi an email responding to Mr. Davi’s January
5, 2018 email, and stating in pertinent part:
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I will call you with the information you requested in a few minutes.
(Davi Decl. Ex. 20, ECF No. 28-20.)
On January 19, 2018, Mr. Davi sent Mr. Toscano an email responding to Mr. Toscano’s
January 7, 2018 email, attaching the final formal easement grant documents, and stating in
pertinent part:
As discussed, attached are the final documents for the easement. Please send to my
attention at the address below 2 originals in escrow that will be released upon your
receipt of the check that we will send you following receipt of the documents.
(Davi Decl. Ex. 21, ECF No. 28-21.)
The only difference between the attachments to Mr. Davi’s January 19, 2018 email to Mr.
Toscano and Ms. Nguyen’s November 12, 2017 email to Mr. Toscano was the inclusion of
Cantor’s social security number and address in the later documents. (Davi Decl. ¶ 31, ECF No.
28.) On January 31, 2018, Mr. Toscano sent Mr. Davi an email stating in pertinent part:
I am going to meet with my client next week to sign everything. . . .
(Davi Decl. Ex. 22, ECF No. 28-22) (emphasis added.)
On February 14, 2018, Mr. Davi sent Mr. Toscano an email stating in pertinent part:
In your email below, you stated that you were going to meet with your client last
week to execute the easement documents. When can we expect to receive them?
(Davi Decl. Ex. 23, ECF No. 28-23.)
On February 27, 2018, Mr. Davi sent Mr. Toscano an email stating in pertinent part:
Where do we stand with this?
(Davi Decl. Ex. 24, ECF No. 28-24.)
On February 28, 2018, Mr. Toscano sent Mr. Davi an email stating in pertinent part:
After several meetings, my Client will not sign the documentation. In the past few
months, he has received additional guidance regarding the value of the easement.
He does not believe that the amount which ConEd is offering is fair and reasonable.
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Please expect to hear from Mr. Cantor’s new legal counsel. I will no longer be
representing Mr. Cantor in further proceedings relating to this matter.
(Davi Decl. Ex. 25, ECF 28-25.)
On March 14, 2018, Con Edison commenced this action for specific performance of the
Agreement. (See Complaint.) Cantor filed his Answer on May 16, 2018. (ECF No. 15.) In his
Answer, Cantor claims that because Con Edison did not pay him the $225,000 on or before
December 31, 2017, the agreement is “null and void” by its terms. (Davi Decl. Ex. 3 at 1.) Cantor
also alleges four counterclaims against Con Edison: unjust enrichment, intentional infliction of
emotion distress, malicious prosecution, and trespass. (Id. at 6–7.) In his Answer, Cantor also states
“There is no fact at issue.” (Id. at 1.)
On June 1, 2018, Con Edison met and conferred with Cantor as required by Fed.R.Civ.P.
26(f). Con Edison told Cantor that, as part of its initial disclosures, it would produce to Cantor
copies of its email correspondence with Mr. Toscano between September 27, 2017 (the date of the
mediation) and February 28, 2018 (the date Mr. Toscano informed Con Edison that Cantor would
not sign the permanent easement documents). (Id. ¶ 37.) On June 7, 2018, Con Edison served
Cantor with its initial disclosures, which included copies of this email correspondence as well as
copies of each party’s mediation statement and appraisal. (Id. ¶ 38.)
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears
the initial burden of pointing to evidence in the record, “including depositions,
documents . . . [and] affidavits or declarations,” see Fed. R. Civ. P. 56(c)(1)(A), “which it believes
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demonstrate[s] the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The moving party may support an assertion that there is no genuine dispute of a
particular fact by “showing . . . that [the] adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden,
the onus shifts to the nonmoving party to raise the existence of a genuine issue of material fact.
Fed. R. Civ. P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A genuine dispute of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Gen. Star
Nat’l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009); Roe v. City of
Waterbury, 542 F.3d 31, 35 (2d Cir. 2008); Benn v. Kissane, 510 F. App’x 34, 36 (2d Cir. 2013)
(summary order). Courts must “draw all rational inferences in the non-movant’s favor,” while
reviewing the record. Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Importantly, “the judge’s function is
not himself to weigh the evidence and determine the truth of the matter,” nor is it to determine a
witness’s credibility. Anderson, 477 U.S. at 249; see also Kaytor v. Elec. Boat Corp., 609 F.3d
537, 545 (2d Cir. 2010). Rather, “the inquiry performed is the threshold inquiry of determining
whether there is the need for a trial.” Anderson, 477 U.S. at 250. Summary judgment should be
granted when a party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case.” Celotex, 477 U.S. at 322.
Critically, in an opposition to a motion for summary judgment “[s]tatements that are devoid
of any specifics, but replete with conclusions” will not suffice. Bickerstaff v. Vassar Coll., 196
F.3d 435, 452 (2d Cir. 1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986) (nonmoving party “must do more than simply show that there is some
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metaphysical doubt as to the material facts”); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d
Cir. 2010) (nonmoving party “may not rely on conclusory allegations or unsubstantiated
speculation” (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998))).
When dealing with summary judgment motions in pro se cases, courts in this Circuit must
“read the pleadings of a pro se plaintiff liberally and “raise the strongest arguments that they
suggest” McPherson v. Coombe, 17 F.3d 276 (2d Cir. 1999) (quoting Burgos v. Hopkins,
214F.3d.787, 790 (2d. Cir. 1994). Pleadings drafted by pro se plaintiffs are not held to the same
“stringent standards” as “formal pleadings drafted by lawyers.” Shariff v. Poole, 689 F.Supp.2d
470, 476 (S.D.N.Y. January 20, 2010). Still, pro se plaintiffs cannot overcome a motion for
summary judgment by simply making “bald” assertions that are unsupported by the evidence. (Id.)
DISCUSSION
Con Edison’s central argument is that the Agreement remains an enforceable contract.
Secondly, Con Edison argues that because Cantor waived the time-of-essence clause in the
Agreement, it is not null and void by the terms of the time-of-the-essence clause.
The Agreement, in relevant part, provides:
Payment shall be made by ConEd to Cantor within a reasonable time from the date
hereof, but not later than December 31, 2017, or this agreement shall then be null
and void.
(See Agreement.) While, at surface, this clause seems to provide that the entire Agreement is null
and void if Con Edison simply fails to make its payment by December 31, 2017, Con Edison argues
that such a clause is germane in real estate transactions and does not require literal payment, but
payment ability, which is necessarily dependent on a seller providing proof of title at the relevant
time. Therefore, Con Edison makes two primary points.
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First, Con Edison argues that Cantor failed to comply with his end of the reciprocal
obligations that this clause imposes on sellers while Con Edison was ready, willing, and able to
comply with its obligations, which entitled Con Edison to specific performance of the contract.
Second, Con Edison argues that in continuing to negotiate the terms of the sale past the deadline
in this clause, Cantor waived strict adherence to its terms. Con Edison further argues that due to
Cantor’s waiver of this clause, Cantor cannot posit that the contract is “null and void” because Con
Edison failed to make a payment to Cantor by December 31, 2017.
I.
Con Edison Was Ready, Willing, and Able to Pay Cantor by the Imposed Deadline
“To obtain summary judgment for specific performance of a real estate contract, the
plaintiff must demonstrate that it substantially performed its contractual obligations and was ready,
willing, and able to fulfill its remaining obligations, and that the defendant was able but unwilling
to convey the property.” Primax Properties, LLC v. Monument Agency, Inc., 158 A.D.3d 1336
(N.Y. App. Div. 2018) (internal marks omitted). The New York Court of Appeals has held that it
is an abuse of discretion for a court to deny a real estate buyer specific performance, which is a
“drastic remedy” in the absence of concrete fraud, hardship, or mutual mistake. See Da Silva v.
Musso, 53 N.Y.2d 543 (1981); Spira v. Acceus, 114 A.D.3d 663 (2014) (“the right to specific
performance is not automatic, and a court has the discretion to deny this remedy ‘where it would
cause unreasonable hardship or injustice’”).
Further, a provision in a real estate contract stating that the agreement is “null and void” if
the closing does not take place by a certain date is known as a “time-of-the-essence clause.” See,
e.g., Jannetti v. Whelan, 131 A.D.3d 1209, 1210 (N.Y. App. Div. 2015). Under New York law, a
buyer is not required to pay the purchase price by the time-of-the-essence closing date; it simply
must be ready, willing, and able to close by that date. Spira, 114 A.D.3d at 663; Cheemanlall v
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Toolsee, 17 AD3d 392, 392-393 [2005]). And a party is ready, willing, and able to close if it has
liquid assets valued in excess of the contract sale price at the time of the closing. See Bayly v.
Broomfield, 93 A.D.3d 909, 911 (2012) (citing cases).
Here, the correspondence that Con Edison submitted shows that it was, at all relevant times,
ready, willing, and able to pay Cantor the $225,000 that the parties had agreed upon at their
mediation. (See, e.g., Davi Dec. Exs. 7, 9, 12, 13, 14, 15, 16, 21, 22, 23) (copious email
correspondence reflecting that Con Edison was ready, willing, able, and actively attempting to
complete the deal and make payment by and after Agreement deadline).
II.
Cantor Reneged on his Obligations and Cannot Demand Specific Performance
Additionally, where a seller demands strict performance as to time, as Cantor does here, he
must perform all the conditions that are required to enable the buyer to perform. See Stefanelli v.
Vitale, 223 A.D.2d 361 (1996). “However, even after time has been made of the essence, a party's
right to timely performance may still be waived.” Id. (citing 76 N. Assocs. v Theil Mgt. Corp., 114
AD2d 948, 949 (1985)). It is well-settled in New York that an oral waiver of the time for the sale
of real property will be given effect. Id. (citing Bacchetta v. Conforti, 108 Misc 2d 761).
Here, Cantor both failed to perform his end of the conditions necessary to enable Con
Edison to perform its obligations, and it also waived the time of essence provision in the
Agreement vis-à-vis his attorney’s email communications.
The Court begins with Cantor’s failure to perform his end of the conditions necessary to
enable Con Edison to perform its end of the Agreement. Cantor never sent a copy of the recorded
duplicate satisfaction of mortgage to Con Edison, as was required. Under the September 27, 2017
Agreement, Cantor was required to provide Con Edison with HSBC’s consent to the permanent
easement or a subordination agreement. (See Agreement ¶ 3.) Instead, Cantor chose to eliminate
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HSBC’s superior interest by providing Con Edison a recorded satisfaction of HSBC’s mortgage
after December 31, 2017, and after his attorney participated in a series of back and forth emails,
relating that Cantor was attempting to meet the deadline but was being held up by the bank’s
administrative process. (See e.g., Davi Dec. Exs. 6-23.)
By meeting its due diligence obligations and continuing the communications after the
contract clause deadline, Cantor not only failed to meet the requisite conditions to trigger Con
Edison’s reciprocal obligation under the Agreement, but he also waived the requirement that Con
Edison make a payment by that date. Cantor himself therefore abrogated the null and void
provision of the clause, which could have been triggered if Con Edison had been obstinately
unwilling to comply with its terms but cannot be triggered simply by Cantor’s intentional and
inadvertent inability to provide timely proof of his clear title to the Property, an obvious
prerequisite for Con Edison to transfer its funds. See Skyline Restoration, Inc. v. Roslyn Jane
Holdings, LLC, 95 A.D.3d 1203 (2012) (affirming district court’s ruling that where buyer was
ready, willing, and able to comply by closing date and seller failed to deliver a timely valid
certificate of occupancy claim, the seller was in breach of the agreement, not the buyer); Primax
Properties, LLC v. Monument Agency, Inc., 158 A.D.3d 1336, 1337 (N.Y. App. Div. 2018)
(granting plaintiff specific performance of his real estate agreement where he repeatedly indicated
that he was willing, ready and able to close by the required date, and the defendant repeatedly
ignored plaintiff’s letters).
In addition, Cantor also waived the time-of-the-essence provision when his attorney wrote
to Con Edison: “We are ready to proceed” after the December 31, 2017 deadline. (See Davi Dec.
Ex. 16) (email dated January 2, 2018 stating: “Attached is the recorded Satisfaction of Mortgage.
We are ready to proceed. Please send me the final form Easement, and let me know many
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counterparts you will need signed. Then, please let me know when we can exchange the wire
transfer for the executed originals.”) Cantor’s attorney continued to represent the same well into
January. For example, on January 7, 2018, he wrote to Con Edison: “I will wrap this up with the
Client this week.” (Davi Decl. Ex. 19.) And on January 31, 2018, he wrote to Con Edison: “I am
going to meet with my client next week to sign everything. . . .” (Davi Decl. Ex. 22.)
The instant case is similar to Stefanelli, 223 A.D.2d 361, where the First Department ruled
that the plaintiff was entitled to specific performance of the real estate contract. There, too, the
Court explained that the Defendants (seller) had waived the time-of-the-essence provision when it
issued the statement “[c]lean up violations so that we can proceed to a closing—Or give up—
Return monies in escrow.” Id. The Court explained that because the Defendants’ statement waived
the time-of-essence provision, while Plaintiff was ready, willing, and able to proceed with the sale
at the relevant time, “defendants failed to demonstrate that nonperformance was justified.” Id.
Here, too, Con Edison has shown that it was ready, willing, and able to proceed with
carrying out its terms of the Agreement. Cantor’s statements after the December 31, 2017 deadline
constitute a waiver of the timeliness provision of the Agreement. Therefore, Con Edison is entitled
to specific performance of the Agreement.
III.
Cantor’s Counterclaims are Abandoned and Dismissed
Cantor raised four counterclaims against Con Edison, including: unjust enrichment,
intentional infliction of emotional distress, malicious prosecution, and trespass. As Con Edison
noted in its brief, there is no triable fact related to any of these four claims.
Beginning with unjust enrichment, as Con Edison correctly notes, where there is a valid
and enforceable agreement governing the subject matter of a party’s claims, that party may not
recover under an unjust enrichment theory. “The theory of unjust enrichment lies as a quasi-
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contract claim. It is an obligation the law creates in the absence of any agreement.” Beth Israel
Med. Ctr. v. Horizon Blue Cross & Blue Shield of New Jersey, Inc., 448 F.3d 573, 586–87 (2d Cir.
2006) (citing Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 572 (N.Y.2005)). Here, while
Cantor claims that Con Edison was unjustly enriched by using his property since November 15,
2016 without providing him compensation, the Court has already found that the September 27,
2017 Agreement is a valid and enforceable agreement, which governs Con Edison’s continued use
of Cantor’s property since November 15, 2016. Cantor has offered no argument or proof in rebuttal
to this claim. Accordingly, this claim is dismissed with prejudice.
Turning to Cantor’s second counterclaim, intentional infliction of emotional distress
(“IIED”), the Court agrees with Con Edison, that Cantor has failed to adduce proof to support the
necessary elements. Most notably, the first element of an IIED claim is extreme and outrageous
conduct. See Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121 (1993). Such “conduct [must be] so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id.; Cuellar v.
Love, No. 11-CV-3632 (NSR), 2014 WL 1486458 (S.D.N.Y. Apr. 11, 2014). This requirement is
“rigorous, and difficult to satisfy.” Howell, 81 N.Y. 2d at 122.
In his counterclaim statement, Cantor alleged, inter alia, that:
•
Plaintiff threatened defendant with confiscation and condemnation of his property unless
he entered into a negotiation.
•
Plaintiff confiscated use of defendant’s property by unlawfully utilizing defendant’s
property without any compensation to defendant from November 15, 2016 to this day.
•
Plaintiff’s use of defendant’s property in violation of the easement and law without
compensation unlawfully compelled defendant to participate in a so called “mediation”
against defendant’s will.
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•
At the alleged “mediation” as termed by plaintiff, plaintiff arrived with five attorneys and
threatened confiscation and condemnation of defendant’s property during said
“mediation.”
•
Plaintiff engaged in intimidation, coercion and threats to defendant’s financial capacity
through a course of conduct threatening loss of a significant part of defendant’s financial
portfolio. Defendant was coerced into a negotiation process instituted by fear and
oppressive conduct of plaintiff.
(See Answer at 6.)
Despite such lofty claims, Cantor has not offered one iota of proof to show that Con Edison,
at any point in dealing with Cantor, was unreasonable, let alone outrageous. Cantor has not
produced one communication that shows an indicium of coercion or intimidation. On the other
hand, Con Edison has adduced abundant proof showing that it engaged in normal business
correspondence throughout the process of negotiating the easement from Cantor. Accordingly, this
claim is dismissed with prejudice.
Turning to Cantor’s third counterclaim, which is for malicious prosecution, this claim too
fails as a matter of law. As Con Edison notes, “[a] cause of action sounding in malicious
prosecution cannot be interposed as a counterclaim in the very civil action that was allegedly
instituted wrongfully.” Sasso v. Corniola, 154 A.D.2d 362 (1989). Here, Cantor’s malicious
prosecution counterclaim is based on Con Edison’s filing this lawsuit. As such, it is impermissible
and is dismissed with prejudice.
Lastly, Cantor’s claim for trespass also requires the Court to first find that the Agreement
is null and void. Absent such a finding, Con Edison’s continued presence is justified by the
permission Cantor granted by entering the Agreement. Cantor cannot prove the viability of his
claim by merely arguing that the Agreement is “null and void.” In order to survive summary
judgment, he must show proof, beyond conclusory statements, to support his position. He has not
done so. All Cantor has provided, by way of proof is a series of self-serving statements in his
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affidavit. This is insufficient. See Fincher v. Depository Trust & Clearing Corp., No. 06 Cv. 9959,
2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17, 2008) ajfd, 604 F.3d 712 (2d Cir.2010) ("A
[nonmoving party's] self-serving statement, without direct or circumstantial evidence to support
the charge, is insufficient to defeat a motion for summary judgment."). As such, his last
counterclaim, too, is dismissed with prejudice.
CONCLUSION
For the aforementioned reasons, Plaintiffs Motions for Summary Judgment is GRANTED.
Plaintiff is entitled to specific performance of the Agreement. The Clerk of Court is respectfully
requested to terminate the motion at ECF No. 26, enter judgment in favor of Plaintiff, close the
case, mail a copy of this Opinion and Order to Defendant and show proof of service on the docket.
August
2019
SO ORDERED:
White Plains, New York
NELSON S. ROMAN
United States District Judge
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