specific performance for sale of property in ny

Michael Staib Specific Performance For Sale Of Real Property In NY. 4-8-15Sandez—Real Property Litigation

Specific Performance For Sale Of Real Property In NY.

A. Introduction .

This pamphlet assesses specific performance with a view toward the sale of real property in

New York jurisdiction. Topics shall include a general overview on specific performance,

equitable remedies, and more particularly, explore how specific performance applies within the

following legal disputes:

(1) Default—Failure To Pay Balance Of Purchase Price;

(2) Residential Property Disclosure.

B. Specific Performance—General Overview .

Specific performance arises where plaintiff seeks enforcement of a contract alternative to

money damages as remuneration for some breach. Plaintiff requests specific performance when

defendant allegedly breaches contract by either refusing or failing to fulfill specific terms agreed

in contract. Specific performance constitutes an equitable remedy. In other words, where

damages remain insufficient as compensation for plaintiff, courts may enforce the specific terms

of agreement between a buyer and seller. Since specific performance protects plaintiff’s

expectation interest—compelling defendant to fulfill terms plaintiff anticipated under contract—

no court shall impose any disproportionate burden on defendant. Courts reason that plaintiff

unjustly enriches if burden to defendant exceeds rights anticipated under contract, consequently

defeating the purpose of specific performance—fulfilling lost expectation. This rationale

comports with the Restatement which NY courts appear to adopt as precedent. i Courts, however,

recognize that a remedy tantamount to plaintiff’s expectation interest under contract may not

necessarily entail the identical performance promised under contract. ii Still, specific performance

relies not on “uniqueness” but difficult establishing feasible damages with reasonable certainty. iii

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C. Injunction v. Specific Performance .

Sometimes parties confuse injunction and specific performance. Both injunction and specific

performance represent equitable remedies. However, the two distinguish in material ways.

Injunction constitutes a court order that compels the defendant to act or refrain from acting in

some specified manner. Unlike specific performance, injunction encompasses multiple legal

actions unrelated to breach of contract. For example, the plaintiff may demand injunctive relief

where a frequent trespasser refuses to discontinue unauthorized entry on plaintiff’s property even

after the award. Assume for this example no physical damage accompanied the trespass. Even if

plaintiff may benefit from money, trespass without any physical property damage generally lacks

any objectively measurable value for damages. Thus, to deter trespass and provide restitution, the

plaintiff may seek injunction against the trespasser. Plaintiff’s injunction petition if awarded may

offer the proper remedy because courts may penalize defendant—e.g. jail time—for recurring

trespass, to prevent future violations.

Additionally, injunction may not always apply as a remedy for breach of contract. Fox Ins.

Co. v. Envision Pharm. Holdings, Inc. assumes injunction may not necessarily apply to every

contract from its assertion that injunctive relief represents “an unconventional remedy for breach

of contract.” iv The court conceded “no ironclad rule” exists as to preclude injunctive relief, but

emphasized injunction applies “if an appropriate standard” for satisfying relief. v This position

presumes that injunction may not always apply as a remedy for every contract.

Conversely, specific performance necessitates an enforceable contract. Unlike injunction,

specific performance only applies to a contract dispute. Specific performance presumes as a

condition precedent the existence of a contract to enforce terms between parties. If awarded,

specific performance must follow a contract. Simply, specific performance necessarily assumes a

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breach of contract. Plaintiff may receive specific performance even if the parties fail to express

time of the essence providing parties execute their agreement within a reasonable time. vi

In Jacobowitz v. Leak, purchaser sought specific performance against defendant for sale of

real property where the closing date fixed under contract expired six months earlier.vii Pursuant

to defendant’s request approximately one month later, plaintiff then scheduled a closing date,

indicating “time of the essence.” viii While plaintiff presented to the court as promised with a

blank check for purchase, defendant defaulted appearance. The court here held that plaintiff

satisfied a prima facie threshold for specific performance. ix Jacobowitz reasoned that assuming

arguendo no invalidating acts, plaintiff’s subsequent announcement as to “time of the essence”

presumed on its surface a reciprocal obligation from defendant. The court, thus, assumes a valid

contract formed sufficient for specific performance. Therefore, according to Jacobowitz, plaintiff

need not specify time of essence because plaintiff’s scheduled closing date approximately one

month after defendant’s demand happened within a reasonable time.

D. Specific Performance—Factors .

Specific performance represents a discretionary remedy. Unlike a typical award of money

damages, courts may decide not to award specific performance. Under New York jurisdiction,

courts exercise “broad discretion in determining whether to award specific performance.” x

Accordingly, courts consider, inter alia, the following factors before deciding whether to award

specific performance:

(1) Presence of sharp practice or misrepresentation . Courts may refuse specific performance

if induced by deceptive motive—exploiting undue advantage with intent to finagle a court

remedy at defendant’s detriment. xi Likewise, seller shall not induce buyer’s non-

compliance with a contractual provision that permits buyer’s waiver of benefits to

preclude buyer from procuring specific performance.xii Here, the court polices

shenanigans.

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(2) Presence of contradictory facts. Courts also tend to disregard specific performance where

“contradictory or unclear” facts prevent the adequate determination of equities. xiii

E. Specific Performance—Elements .

Action to enforce specific performance of a contract requires the four following elements:

(1) Substantial performance—plaintiff substantially performed contractual obligations;

(2) Ready, willing, and able to perform obligations—plaintiff at the time of contract proved

ready, willing, and able to perform contractual obligations;

(3) Defendant’s ability to convey property—Defendant possessed the ability to convey

property when parties contracted; and

(4) No adequate remedy at law—Plaintiff lacked an adequate remedy otherwise to enforce the

contract. xiv

F. Discussion of Elements .

(1) Substantial Performance .

The first element to enforce specific performance concerns substantial performance. To

satisfy substantial performance, plaintiff must substantially perform contractual obligations. The

law provides no fixed formula for defining substantial performance. Hence, substantial

performance constitutes a factual determination reserved for the jury. xv The issue here concerns

whether plaintiff received certain benefits bargained for under contract. To satisfy substantial

performance, courts consider several factors including, inter alia, the following:

(a) Amount of unfinished work;

(b) Nature of default—a trivial and innocent breach may permit damages rather than

specific performance; and

(c) Extent to which plaintiff substantially benefitted from performance. xvi

(2) Ready, Willing, And Able To Perform Obligations .

To enforce specific performance, plaintiff must also prove oneself as a ready, willing, and

able purchaser at the time of contract with defendant seller. NY jurisdiction offers an exception

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to this rule if purchaser acts with reasonable due diligence. Courts may declare specific

performance for purchasers ready, willing, and able to perform “on some subsequent date the

parties fix,” or “within reasonable time thereafter.” xvii This exception only applies where parties

specify a “no time of the essence” provision. xviii

In Liberty Affordable Housing, Inc. v. Maple Court Apartments, prospective purchaser’s

default on agreed closing date under contract fails to establish a ready, willing, and able

purchaser. xix There, plaintiff indicated inadequate money for payment to close on the specified

date of closing. xx Defendant informed plaintiff of forfeiture—agreement terminated by

plaintiff’s default—but indicated it “might” consider a new purchase counteroffer from plaintiff.

xxi Neither party specified a “no time of the essence” provision. Plaintiff waited approximately

two years before responding to defendant’s tentative consideration. Unsurprisingly, Liberty held

that plaintiff’s “failure to perform obligations” within the timeframes enumerated under contract

negates specific performance. xxii Furthermore, plaintiff’s delay to pay—waiting “almost four

years after the original closing date”—establishes no evidence of securing payment, “within a

reasonable time thereafter.” xxiii The court also reasoned that regardless of delay to pay, a new

contract never formed following plaintiff’s default sufficient for establishing any, “reasonable

time thereafter.” xxiv

(3) Defendant’s Ability To Convey Property .

A petition for specific performance also requires evidence of defendant’s ability to convey

property. Defendant’s ability to convey property presumes defendant’s possession. Accordingly,

defendant must possess the property first to convey it. Defendant lacks ability to convey without

possession. Thus, plaintiff must establish defendant’s possessory interest in property before

proving defendant’s ability to convey property. Defendant’s ability to convey also presumes the

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precondition of valid title. Valid title (aka marketable title) means a legal right free from defect

to control and transfer property. Free from defect means absolute ownership—all the bundle of

sticks—that accompanies a legal right to property. The bundle of sticks associated with

ownership include right to possess, use, exclude, and convey property. Thus, a seller of real

property shall not receive specific performance without first establishing “marketable title,” since

specific performance requires ability to convey, and seller may only convey property with

marketable title. xxv In New York, however, courts hold the following:

(a) Purchaser satisfies specific performance if seller cures defective title before the action

for specific performance commences; xxvi

(b) Purchaser satisfies specific performance where an encroachment causes seller’s

noncompliance to sell land. Purchaser may receive price abatement for property; xxvii

(c) Buyer may receive specific performance where seller neglects or refuses reasonable

expenditure to remedy defects of title as an implied good-faith effort required under

contract; xxviiiand

(d) Remedy limitation clause may permit specific performance for seller’s self-created

failure to convey marketable title, namely—cure title defects—as revealed by title

examination. xxix

(4) No Adequate Remedy At Law .

As an equitable remedy, plaintiff may only establish specific performance where difficult to

quantify damages with reasonable certainty. xxx Consequently, courts consider the nature of a

transaction before determining whether to award specific performance. In Van Wagner

Advertising Corp. v. S&M Enterprises, plaintiff sought specific performance to lease advertising

billboard on the exterior wall of a building. xxxi This particular location—opposite the Midtown

Tunnel entrance—purportedly constituted a “unique” place for plaintiff’s intended advertising

purpose given its visibility to vehicles entering Manhattan. xxxii Van Wagner held that

“uniqueness” never provided any standard for specific performance. xxxiii The court reasoned that

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“uniqueness” fails to presume unquantifiable damages if based simply on physical attributes as

location. xxxiv The court distinguished “physical difference” from “economic interchangeability,”

concluding that a “unique location” fails to demonstrate uncertain value. xxxv If anything, the

court reasoned, a lease—unlike sale of property—yields damages of reasonably certain value

inferred from contractual terms. xxxvi Parties’ contract indicated revenues and lease itemized

expenses, both from which the court may infer lost profits. See infra p. 9 Moreover, the court

considered, “volume, refinement, and reliability of available information about substitutes.” xxxvii

For example, the commercial billboard used evidently constituted a “comparable substitute” with

value commensurate to “similar uses.” xxxviii Therefore, since damages remain ascertainable,

plaintiff fails to satisfy the burden of disproving an inadequate remedy on appeal.

G. Complaint .

Historically, specific performance sought to enforce a contract for the sale or purchase of real

property required no express allegation that plaintiff lacked any remedy at law. For example,

courts held that a complaint need not state that “irreplaceable, unique property” represents the

subject of plaintiff’s action. xxxix Here, courts reason a pleading without factual allegations

suffices since specific performance suggests the absence of any money value to state. xl Instead,

courts rely on the contract as evidence. But wisdom dictates to always confirm local

jurisdictional rules for pleading requirements—e.g., the County Clerk of New York. With

heightened plausibility standards now required for factual allegations in complaints, procedural

changes to the aforementioned requirements appear questionable. xli Therefore, given the general

heightened pleading standards, a vigilant eye to possible variations in procedure regarding

specific performance remedies never hurts.

H. Discovery .

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After filing a complaint, the discovery process begins. Discovery involves the process of

gathering preliminary facts before trial. Here, attorneys use various devices to elicit facts from

opposing counsel. Under Federal Civil Rules of Procedure (FRCP) 26(b)(1), plaintiff may obtain

all information of any matter “reasonably calculated” to discover admissible evidence. In other

words, plaintiff’s attorney may issue a request for production—e.g., requesting purchaser’s

original contract with seller—to determine the basis for enforcement. All document requests

related to the pertinent contract at issue provide information reasonably calculated for discovery,

since specific performance ineluctably assumes enforcement of a contract. Discovery may also

obtain information from third party witnesses not named in the suit. The lawyer may issue

subpoenas to the third party witnesses demanding documents and other information, such as

about a contract, reasonably calculated for discovery. To conduct discovery, counsel must

follow all statutory requirements since each jurisdiction provides its own discovery standards

independent of the FRCP. Not every jurisdiction follows the same disclosure requirements. For

example, in New York:

(a) NY CPLR § 3119 requires party serving a subpoena to “sufficiently state circumstances or

reasons underlying the subpoena” as necessary for disclosure; xlii and

(b) Courts grant motion for deposition where plaintiff’s affidavit reveals a triable issue in action

seeking specific performance of option to purchase realty. xliii

I. Summary Judgment .

A summary judgment pre-trial dispositive motion eliminates claim where the opposing party

fails to establish evidence sufficient for jury review at trial. To prevail on summary judgment

under Rule 56, the movant (defendant) must prove that non-movant (plaintiff) establishes no

genuine, triable issue of material fact. If defendant prevails, the court as a matter of law declares

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summary judgment against plaintiff, thereby dismissing plaintiff’s complaint as lacking evidence

sufficient for trial.

Regarding specific performance, a defendant prevails on summary judgment by conclusively

demonstrating that plaintiff failed to satisfy any one of the four foregoing elements itemized. See

supra pp. 4-6. Therefore, to overcome the summary judgment threshold, plaintiff must satisfy all

four elements with sufficient evidentiary support. xliv If not, the court dismisses plaintiff’s

petition for specific performance because plaintiff shows no genuine issue of material fact—not

one proven reason—to substantiate specific performance. For example, if purchaser failed to

prove a possessory interest in real property, purchaser negates the ready, willing, able plaintiff

requirement for specific performance. xlv Plaintiff fails to establish a genuine issue of material

fact because plaintiff lacks support for specific performance absent at least one requirement.

J. Specific Performance For Sale Of Real Property .

(1) Lease v. Sale Of Real Property.

Specific performance constitutes a common remedy for real estate in New York. Yet, the

state evidently refuses to award specific performance for real property leases as a matter of

course. xlvi Van Wagner reasoned that a lease fails to qualify for specific performance because

courts may extrapolate damage estimates with reasonable certainty. xlvii Van Wagner

distinguished a lease from the sale of real property. For example, the purpose of plaintiff’s

contract there served to “lease” rather than sell an interest in property. See supra p. 7.

Nevertheless, Van Wagner fails to address the issue of any logical distinction between “a

commercial or residential lease” and “real property lease.” xlviii The inference that courts may

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award specific performance for “a commercial or residential” lease but “not real property leases”

appears inconsistent. xlix

(2) Specific Performance—Generally Favored in NY.

Generally, New York jurisdiction presumably favors specific performance as a remedy for

real estate transactions. For instance, courts shall enforce specific performance absent any

evidence of a “drastic or harsh remedy.” l To deny specific performance under such

circumstances evidently demonstrates “abuse of discretion as a matter of law.”li In Spira v.

Acceus, plaintiffs sought specific performance for the sale of real property. lii Plaintiffs

demonstrated they fulfilled all obligations under time of the essence contract as a ready, willing,

able buyer. liii Defendant sought to rescind agreement, alleging that the bargain proved

“unreasonable or unprofitable.” liv The court held that equity shall not, “relieve parties from

bargains simply because of an unreasonable or unprofitable bargain.” lv The court reasoned that a

mere “unreasonable or unprofitable bargain,” fails to necessarily imply any “drastic or harsh

remedy.” lvi Therefore, Spira concluded that the mere “unreasonable or unprofitable bargain,”

even if proven by defendant, failed to negate plaintiff’s petition for specific performance.

K. Real Property Legal Disputes .

This last section assesses specific performance vis-à-vis two particular sale of real property

transactions.

(1) Default—Failure To Pay Balance Of Purchase Price.

Plaintiff seeking specific performance to enforce a sale of real property contract must prove

the opposing party defaulted. lvii In Post Hill, LLC v. E. Tetz, Sons, Inc., purchaser refused down

payment after receiving real property as the highest bidder through an online auction.lviii Seller

sought specific performance to compel the required payment following purchaser’s default after

executing the contract of sale. lix Defendant moved to dismiss seller’s claim, contending that

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contract remained void because purchaser received no accompanying signed writing as required

under the statute of frauds. lx Under New York law that a contract in cases involving “part

performance” may prove enforceable even if it fails to comply with the statute of frauds.lxi But

courts tend to analyze part performance for equitable principles only for actions and detrimental

reliance of the party seeking enforcement. lxii Additionally, the conduct must “unequivocally refer

to the alleged agreement.” lxiii Post held that plaintiff failed to evince part performance sufficient

for receiving enforcement where agreement lacks signed writing as required under the statute of

frauds. The court reasoned as follows:

(a) Here, plaintiff relies on defendant’s conduct to prove part performance rather than its

own—thus, generally not analyzed under equity; lxiv and

(b) An auction provides no “unequivocally referable consummated agreement” with

defendant because defendant competed with other bidders in one preliminary step

preceding contract. lxv

(2) Residential Property Disclosure.

New York, like Virginia, takes a moderate approach to residential property disclosure.

Historically, New York tended to favor “caveat emptor”—“Let the buyer beware”—which holds

buyers accountable for any risks they assume in purchasing residential property. Today, New

York departs from tradition. Courts now strike a balance between the conventional and

contemporary exception approach—imputing liability to sellers for non-disclosure. New York

recognizes sellers as agent fiduciaries to whom buyers entrust in a special relationship of

confidence. Negligent misrepresentation occurs when the agent seller induces buyer to

“reasonably rely on incorrect information,” in violation of fiduciary duty. lxvi Fraudulent

concealment (also active concealment) requires deception. Mere silence during arms-length deal

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fails to satisfy fraud without deception. lxvii Active concealment means seller knew of a defect,

failed to disclose, and the non-disclosure undermined buyer’s inspection efforts. lxviii

However, specific performance as an enforcement remedy appears difficult to acquire for the

following reasons:

(a) The Property Condition Disclosure Act (PCDA), effective since March 1, 2002, which

applies to residential real property shall not require specific performance. lxix While this

language may not necessarily restrict specific performance, PCDA also permits a $500 credit

to buyer at closing for non-disclosure. Such a credit imposed against seller may negate the

“no adequate remedy at law” specific performance requirement. lxx

(b) Secondly, New York never entirely abandoned caveat emptor. Courts held that absent active

concealment, New York law precludes specific performance because caveat emptor imposes

no duty to disclose. lxxi

Buyer may seek specific performance for active concealment where defendant inhibited

inspection efforts on matters, “not peculiarly within party’s knowledge” as to escape caveat

emptor. lxxii Thus, a buyer may receive specific performance perhaps for certain unknown

structural, mechanical, or environmental defects. But the standard form disclosure statement

required by PCDA which itemizes such topics may serve as notice sufficient to invalidate

specific performance under caveat emptor. lxxiii Consider the following case.

Rojas v. Paine held that failure to disclose title by deeds prove insufficient for fraud as

matters of “public record.” lxxiv The court reasoned public records easily accessible to anyone

who inquires about them falls “peculiarly” within buyer’s “ordinary knowledge” under caveat

emptor. lxxv Thus, caveat emptor precludes a specific performance remedy for failure to disclose

titles openly available on public notice.

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i Van Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186, 195 (1986); Matter of Burke v. Bowen, 40 N.Y.2d 264, 267 (1967); Cox v. City of New York, 265 N.Y. 411 (1934); Restatement [Second] of Contracts § 364 [1][b]. ii NML Capital, Ltd. v. Republic of Argentina, 699 F.3d 246 (2d Cir. 2012). iii Lezell v. Forde, 26 Misc.3d 435 (N.Y.Sup., 2009).iv Fox Ins. Co. v. Envision Pharm. Holdings, Inc., 2009 WL 790312, *7 (E.D.N.Y. Mar. 23, 2009). v Fox Ins. Co. at *7 (E.D.N.Y. Mar. 23, 2009). vi Jacobowitz v. Leak, 798 N.Y.S.2d 67 (2005). vii Jacobowitz at 70.viii Id. at 70. ix Id.x Edge Group WAICCS LLC v. Sapir Group LLC, 705 F.Supp.2d 304 (S.D.N.Y.,2010). xi Flash v. Powers, 99 N.Y.S.2d 765 (N.Y. Sup. 1950).xii Poteralski v. Colombe, 84 A.D.2d 887 (N.Y.A.D.,1981). xiii Khayyam v Diplacidi, 167 A.D.2d 300 (N.Y.A.D.,1990).xiv Liberty Affordable Housing, Inc. v. Maple Court Apartments, 998 N.Y.S.2d 543, 548 (2015). xv Merrill Lynch & Co. v. Allegheny Energy, Inc., 2005 WL 832050 (S.D.N.Y. Apr. 12, 2005). xvi Jacob & Youngs v. Kent, 230 N.Y. 241 (1921). xvii Goller Place Corp. v. Cacase, 672 N.Y.S.2d 923-24 (1998). xviii Zeitoune v. Cohen, 66 A.D.3d 889, 887 N.Y.S.2d 253 (2d Dep’t 2009).xix Liberty at 548; NML Capital Ltd. V. Republic of Argentina, 699 F.3d 246 (2d Cir. 2012). xx Id. at 548.xxi Id.xxii Id.xxiii Id.xxiv Idxxv Lawrence v. Mountain, 651 N.Y.S.2d 923, 924 (2d Dep’t 1998). xxvi Marsh v. Christodoulou, 733 N.Y.S.2d 464 (2001); Downe v. Treadwell, 173 A.D.2d 673, 570 N.Y.S.2d 589 (1991); Laws v. Henrock Realty Corp., 82 A.D.2d 797, 439 N.Y.S.2d 412 (1981). xxvii Satterly v. Plaisted, 384 N.Y.S.2d 334 (1976). xxviii Karl v. Kessler, 850 N.Y.S.2d 165 (2008). xxix Naso v. Haque, 734 N.Y.S.2d 215 (2001). xxx Edge Group WAICCS LLC v. Sapir Group LLC, 705 F.Supp.2d 304 (S.D.N.Y.,2010); Lezell v. Forde, 26 Misc.3d 435 (N.Y.Sup., 2009); Van Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186, 195 (1986). xxxi Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186, 195 (1986).xxxii Wagner Advertising Corp. at 192. xxxiii Id. at 192.xxxiv Id. at 192-3.xxxv Id. at 193.xxxvi Id.xxxvii Id.xxxviii Id.xxxix Wasserman v. Manson, 233 N.Y.S. 80 (1st Dep’t 1929); Jones v. Barnes, 94 N.Y.S. 695 (3d Dep’t 1905). xl O’Brien v. Kennedy, 63 N.Y.S.2d 666 (1946). xli Ashcroft v. Iqbal, 556 U.S. 662 (U.S.,2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). xlii Kapon v. Koch, 23 N.Y.3d 32 (N.Y.,2014); NY CPLR § 3101(McKinney 2014). xliii Brookwood Parks v. Jackson, 261 A.D. 410 (N.Y.A.D. 3 Dept. 1941); NY CPLR § 3101(McKinney 2014).xliv Del Pozo v. Impressive Homes, Inc., 814 N.Y.S.2d 734, 735 (2006).xlv Parr v. Ronkonkoma Realty Venture, 819 N.Y.S.2d 550 (2006).

xlvi Straisa Realty Corp. v. Woodbury Associates, 546 N.Y.S.2d 20 (1989); Van Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186, 195 (1986).xlvii Straisa Realty Corp., at 20 (1989). xlviii Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186, 192 (1986).xlix Van Wagner Advertising Corp at 192 (1986).l Coleman v. Coker, 888 N.Y.S.2d 535 (2d. Dep’t 2009); EMF General Contracting Corp v. Bisbee, 774 N.Y.S.2d 39 (1st Dep’t 2004). li Cheemanlall v. Toolsee, 792 N.Y.S.2d 360 (2d Dep’t 2005); Bregman v. Meehan, 479 N.Y.S.2d 422 (1984). lii Spira v. Acceus, 114 A.D.3d 663 (2014).liii Spira at 663 (2014).liv Id. at 663 (2014). lv Id. lvi Id. lvii Latora v. Ferreira, 102 A.D.3d 839 (2013); Nehmadi v. Davis, 63 A.D.3d 1125 1128 (2009); Elbayadi v. Norton, 216 A.D.2d 936 (1995); Exclusive Envelope Corp v. Tal-Spons Corp., 590 N.Y.S.2d 222 (1992). lviii Post Hill, LLC v. E Tetz & Sons, Inc., 122 A.D.3d 1126 (2014). lix Post Hill, LLC at 1127-28.lx Post Hill, LLC at 1127-28.lxi McKinney's Consolidated Laws of New York Annotated General Obligations Law § 5-703[4].lxii Post Hill, LLC at 1127-28; McCormick v Bechtol, 68 AD3d 1376, 1379 (2009); Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 236-237 (1999); lxiii Id. at 1128; Anostario v Vicinanzo , 59 NY2d 662, 664 (1983). lxiv Id. at 1128-29.lxv Id.lxvi Katehis v. Sovereign Associates, Inc., 44 Misc.3d 1220(A) (N.Y.Sup.,2014).lxvii Keis Distributors Inc. v. Northern Distributing Co., Inc., 641 N.Y.S.2d 417 (3d Dep’t 1996). lxviii Laxer v. Edelman, 75 A.D.3d 584 (N.Y.A.D. 2 Dept.,2010). lxix N.Y. Real Prop. Law §463. lxx N.Y. Real Prop. Law §465. lxxi Jablonski v. Rapalje, 14 A.D.3d 484 (N.Y.A.D. 2 Dept.,2005).lxxii Rojas v. Paine, 956 N.Y.S.2d 81 (2012). lxxiii N.Y. Real Prop. Law §462. lxxiv Rojas at 83. lxxv Id. at 83.

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