Asensio v. Casa 74th Development, LLC

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 5, 2010, which granted defendants’ motion to cancel a notice of pendency filed by plaintiff with respect to a newly constructed condominium unit and for summary judgment as to the complaint and their counterclaims only to the extent of cancelling the notice of pendency, modified, on the facts, to deny the part of the motion that sought to cancel the notice of pendency, and otherwise affirmed, without costs.

Triable issues of fact, including whether construction of the condominium unit was “substantially completed” at the time of the proposed closing, preclude summary dismissal of the complaint and judgment in favor of defendants on their counterclaims. Defendant sponsor’s failure to substantially complete the work would have constituted a breach of the agreement to sell the unit and relieved plaintiff of his duty to attend the closing and tender the balance of the purchase price (see Kopp v Boyango, 67 AD3d 646, 650 [2009]). For that reason, defendants’ argument that plaintiff may not seek specific performance because the agreement was terminated on May 20, 2009, when the purported cure period expired without any closing, is also unavailing.

Contrary to defendants’ contention, plaintiff did not choose either of the inconsistent remedies of rescission and specific performance in the earlier escrow dispute proceeding before the Attorney General; he argued in the alternative, and he withdrew his claim before the Attorney General issued any decision. Having never definitely opted for rescission, plaintiff is not precluded from pursuing specific performance in this action (compare 331 E. 14th St. v 331 E. Corp., 293 AD2d 361 [2002], Iv dismissed 98 NY2d 727 [2002]).

In view of defendants’ failure to demonstrate their entitlement to summary judgment, there is no need to reach their contention that plaintiffs default entitles defendant sponsor to retain the down payment monies and to recover costs and attorneys’ fees.

Since, as the motion court found, defendants are not entitled to summary judgment, the notice of pendency filed by plaintiff is not subject to mandatory cancellation (CPLR 6514 [a]; see Sorenson v 257/117 Realty, LLC, 62 AD3d 618, 619 [2009], Iv dismissed 13 NY3d 935 [2010]). Nor does the record support a discretionary cancellation pursuant to CPLR 6514 (b) on the ground that plaintiff has not prosecuted this action in good faith (see 551 W. Chelsea Partners LLC v 556 Holding LLC, 40 AD3d 546, 548-549 [2007]). Contrary to defendants’ contention and the court’s implicit finding, plaintiffs eight-month delay in commencing the action is an insufficient basis for concluding that he was motivated solely by a desire to impede a sale of the condominium unit to a third party. In any event, it cannot be said, on the existing record, that plaintiffs efforts to protect his rights to the apartment, through litigation, were improper. Concur — Friedman, J.P., DeGrasse, Manzanet-Daniels, JJ.