Preview
FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019
EXHIBIT A
FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019 i
RESIDENTLLL CONTRACT OFSALE
JointlyPrepredbytheRealProperotHectionqftheWewYarkStateBarAnoctattop,.theNetYörkStateLandDtimAacciatimutheCasis
eoitRealPñpertykt
oftheAnäctâtionofmeBarofGeClyøfWewY0thandtheComm(tleeanFedlPropertyLawoftheWewforkCoundyfawyerfAssociation.gl|007
CONSULT TOUR LAWYER BEFoBE SIGNING TEUS CONTRACT.
NOTst PrengDcascaLTY LOS$RS AND CONDEMNMtf01.t This contmethdoesnot
pavide forwhthappens
in theovest oche.dothercasually
lessor
=ñ÷áQbëtote thetide doskg. Weihtpro inhis madebtthia ooptmg3ectionSQ1l
ofthd GeneratObligationsLawwill
Apply.Onepart offhat law
poemif66 of th
makesa#urchasehesponsible16rScoád casuahytosupontaing Premisesbdreb title desiu
WARNING: PLADf LANGUAGEMo=rWraica hnade thatodgibun ofcontmet fbrtheath
eadyerchaseofreat estcoer.¡ñin
widiSectionB-702 ofthe0enerni
cMainianspase").
obligationstan
CONTRACT OF SALB mgde as of ? / between
3
Eugene Hubberd
Address: Wo lviainStreet,Wes ham ptonBeach, New York 11978
Social Nuthber/Fe& L D No(sh herefnater cãlled"Seller"
and
Security
EliPdpack Or To An Entify ht Will Be Created
Address: 756Eastern Parkway,Brooklys,New Ýork11213Ella
DJio(s): hereinafter "
Social Seáority.Number/Feil called"Purchaser
The parties hereby agree atfollown
L Eremises. SellershallseR and convey gud Purchaser áhellpurchase the property,
togetherwith allbuildingsand improv.ements
thereon the'"nomisr#), more Atllydescribedon asepaccatepagemarked anaemed heretoland made a part
(cclkady "BehodalcA7
hereof and alsoknown as:
StreetAddrew. 114 Jessup Loney Westhampton Bea&, New York
Desig=tion·
Taf Map Sectioft01900.Block 0007, Lot(s)0120623 Town of Son aspian, Suffolk County
Together with Seller%ownership andrights,ifany, toland lyingin the bed of
any streetor highway opened or pro ased, adjoining
the P1wnise4to1he center line anyright
thereof;includfing of to
Seller any uttpaidaward by reasonofany takingby ed-a=.me a
and/or forattydanage tothe Pretnisesbyreason ofchange efgrade ofany streetorhighway. Seller
thalf deliver
atno additional.
cost to Purchase6at Closing(ashereinafterdermed)3 or thereaftenon demand, any daceants thatPurchaser may feasonably
requireforthe conveyance visugh tith and theassignment enicollecti6n of suchaward or issags
a kusonairropersydnja saleasu htciucesaü 1unures andwds
Premises, unless exatnded
specifically below. Sellerrepresentsand warrantsthat at Closingtheywill be paidf owned by
Seller,freeand clearof liens
all and enountbrances,except gayexistiúgmortgáge tò%vbic . anay be subject3Theyinclude
but arenot limitedto,plumbing, heating,lightingand cooking fixtures,chan thecom andkitchen cabinets and counters
mantels, doormirrors, switchplatesend dbor hardware, v6 , whidowtreatments, shades,screens, awnings,storm
windows, storm doors,window boxes,mail .er,tals, weather
yane, flagpole,
pumps, shrubbery,fencing, outdoorstatuary,
tool shed,dishwasher, wash ne,.olothes
dryer,garbage disposalunit,range,oven, built-in
microwave oven, refigerator,
freezer,aft g equipment and foe ne, walitowall carpetingand bnitt4nsnot ascinded below:(strikhout
Excluded tom thissale are furnitute
And household fitrnishings
and
NY$BA's nesidential Realastate Fonns C1/00) -16 O2012 Matoidiv Beader
O a rneruborotihe LexisNexisGrdup.
FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019
3. Eurease Price.The purchase price s 4 1,2 0,000.00
payable es follows
on the signingof this by Purchasets
contract, good check payableto the Escrowee(as hereinafterMMadl subjectto
(a)
the receipt
collection, of which is hereby
acknowledg4 to be heldinescrow patenent to paragraph6 of this
contnic (the
$ ,000.00
"Downpayment")
balance at Closingin accordance with paragraph7 S 1,125 0 00
(d)
%.‰eytenttht cyremdredmyrñent m an th es' n mort tween f renÝand 1n ½ h
fhy
M Wthw to n mar+mh amenwhAnt t Ne1he n f tn
P hn h con he noo nerf and h
h 1 mannt th * m nf +n lee n
veen dh h ser$ th Wth hnl of c mn nk ne nth n d..o nthht
b WAntrowÅ W9eronte that eller M e n Pttr er trHP GWdenm e A en n n mn a
trAah^nay ñd martyy.th 11.he.dmwn ht huttnm fneblkr hi the fnrmn;rh.;d nv fnat hthe
(a)
awa rn a
hÿ thp
hu ¼W .+a+47 an↠rb 4ýwt Mm‰nhwe ehm11
py
at indng h mnrt + v
reenrding.fe mrl theattnrnge feeditihe.nmenet n . enr½ prepratinr ..
‰ prAmes money wnf a ed mncto«gembli ston prnvid
h+½† onhyear andä.w "r.mitn the lienn he pr&
mnrtpge And nny rFanqinnewdñMingtaplacemento nt :ñ~Anneinnq ofthe mnitonga that
prn1rirled +hkterest ...
ethning
ratetharanidhõ11an+ h*ormter then mntyre anmtm and theinfaldehhmem+kaemmAn shWll unt-e granter
thw
wn wom Wiwpan nmarworew A11 aweea h amnimbsprisipai nwm3 as
mpu an+h
-e;-; - f the ffmenfphkg mmh ne enmn1 rhtedmart ob eveea ke pid enh hn1 n
evicting
prahamnhey mortgage k:redur+tnn nFtha
wewmartpy
nrMMpl thereof‰ mtre
to theholder therenfh11 not nTter or n‰t ths re One installmente..ifme of wrkeind whhthecamder nélahal4he hn lar
6 TMwnpayment tatscrow ( ) Seller's
attorney("Èscrowne") abd hold theDo p ment inescrovrin a segtégated
bank
a
National
Irst Bank of Lon Island
AddresMPrankan Ave, Garden Oty 11530
itntil
CIøsing or sooneriMmMon of this
contractand shall syover orapply the h=pri=mt inaccardãñawith the termsof
thisparagraph, BeõtóWee shdu h01a the Dow2tphyrnent inQi) interest-bearingaccountfor thetenefithfthepartiesdf
intef6stis held
for thebeefit of they4ttles,it
smil be patà to the party
entined totheDownpaymentrand the party
(eceivingthe
interestshallpay incoine
aily tgxesthereandf interestis
not held for the
benefitofthe partiesJhe Downpayment shahplaced in
an IOXAaccouút or As othBrWi$50permitted
otrequiredby lawJhotooial securityor1federalIdentl1ication
numbefs oftheparties
she be $2rnishedto Escrowee upon requmAt Closing, the Dovapayment:shall be paidby Escrowee tor Seller.
Iffbranyreason
Closing does notoccur and eitherpartygivesNodce (as definedin p-dagraph 25)to Escrowee demandin¼ päyment pf the
DownpaymentJacrowee shallgive promptNotice to theotherparty ofsuch deme.d. IfBscrowee does netreceiveNotice øf
NYSBes koddentWReátEstateForma(11/D0) O2012 MeftlièwBender & Co
amember b thef.exisNexis 0tepp;
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FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019
from
objection such otherparty to theprbposedpayment within 10 busines&days anerthe giving ofàuch Notice, Edorowee ikhetehy
authorizedand directedto make such payinent.IfEscrowee does receivesuch Notice of objectfon
withh such 10 datperiod or iffor
any otherreason Bscrowne ingood fidthshallelectnotto make such paylgentEscrowee shallcontinuefo hold suchamount until
otherwise directedby Woticef¾qa the parties
to thiscongact a futál,
nonappealablejudgment, onler of a courtGlowever,
or tleeree
Escrowee shallhave therightat anytlineto depositthe Downpayment and the interestfhereanwiththe clerkofa oeurtin to county
insvhleh the Premisesare locatedand shallgiveNotice of such deposittoSener and Purchaser. Upon such depositer other
disbursement lu accordance.withthe terms of this
paragraph, Escrowee shallbe relievedand discharged ofan furtherobligations
hereunder,
and responsibilities
(b) The patica acknowledge that,Escrowee is acting as a dehnidel
solely t their
requestand for their
wonvenience and
thatEsorowee shallnot be liable¾ither pmty forany actor ornission
on ts part
unless taken or suffered
in bad faih or in willful
disregard ofthiscontractor involvinggrossnegligence on the partofBscróWee. Sellerand Purchaser jointlyand (with
seterally
rightof contribution)agreeto defend(by Ameyeselected by Escrowee)3adc=iff and bbld Escrowee harmless f(omand against
all claimsand expensesOncluding reasonabl'e
attomeW feesyincorredin connectionwith theperformance ofEscrowee's
edsty
dutieshereunder, exceptwith respectto actionsoromissions taken or suffered
byEscrowee in badfaithor inwillfuldisregardof tis
contractor involvinggross negligenceon theyatt ofEsorowee.
(c) Escrowee megy actor refrainfrom actingin respectofgny matter refi:rred
tohereink fulfrelianceupoanid wilk the
advice of counselwhich alaybe selectedbyR (inclñdingg$inember ofits firm)ándahall be fullyprotectedinso abdag or
from
refi'aining actingupon theedvice ef suchcounsel
(d) Escrowee acknowledges reoølptof the Downpayment by check subjecttocollectionand Escrowee's agreeinentto the
provisionsofthis paragraph by signingA the placeindicatedon the signdtm2page of thiscontract.
fe) Escrowee or any member ofitsfirm shal1he permittedta not.asoatmseliksenet in guy disputeas to the
disbursement of
ne Downpayment orany otherdispute between thepartieswhether ornotEscrowee isinpossession ofthe Downpaÿment and
continuesto actas Escrawee.
(1) The party whose attorneyis Escrowse shallb.e liable
forloss ofthe Downpayment
7. Acceptable Funds, All moneypayable ander thiscontract,unlessotherwise shall
specified, be paid by:
(a) Cash, but notover $1,000.00;
(b) Good check
certified of Purchaserdrawn on arofficialchectissued by anybmkigatings banka tedstcoln atty or payings
and loan associationhaving a banking oftice
in theState of New Tork, unbadorsed and payable tothe orderof or m 8dtgr
Seller,
may o&erwise directupon reasonable priornotice(by felephone or other wise)
f o Purchaser;
(c) As to money oker than inepurchase pricepayable Sellerat Closing,uncerdfied oneck ofPurchaser n to the amountof
S1,00040 ; and
) As otherwise agreed to in
writing by SellerorSeller'sattorney.
.m h Ñ( (f Onmmitment T1n ten th mhmenHI-Am an Tn9fifnt
rmn1 T entl a h .
491E4t-Sh9Mer-te BMt04 6
enwamary
enmvn (+h en h ertent aP-h an t nn rW nn prt nn the
eat n
imragymmt ofmy
nnfetan r1 nriAt n matorM eduers Acm in Pnech neig1 ~Ehnr wny
Ather inn
. -w'f&: -.-h~¬reents theris1c thaf
ench ennÆfinne trf†nnt hr n- h+•we ennelitined mn thenot m 1
4%er-mana nas esp 4 byhe ase Banned h
-theseof .
NYSBA'sResidentidRealEstatefone(1t/00) 4 42012hlatthew Bender &. co.,a
raember oLexis Oro .
FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019
suoMes@ahas enae
schase40
andaf thh gkin Nnti a toReUar w h n h ewdaynner & Onmmitmet k
Pnwhwmay mwrashy p
Notice4ndud
mded ta. Archeer .ed ever f W tret Enrth iri
mormh
mm rmw éé ne end inC -+½ weM+ men A h hein 4nn ahf‰r Arrmn T d nPA kn9 +
Unt ãhesena) er-ste+fer .
knq¼ee in hwVrielf %te+ thm+ w n r e +ertw wmantin Aff4le MnnFLAm1½w Yw am1 armin&ÔmataM.fnmotw
Peralitted Weeptions4The Premises are soldand thallbe conveyed subjee to
(a) Zoning atidsahdMeloñ Is we edregulations and kndmark, histone or Whnhdalgastica, provied thatthey are not
vichted buildings
by the.existing and improvements erectedon the propetyor theirusq;
(b) Consentafor the erecticeof anyshvctures on, underor above any w
streets which the Premises abat;
(e) Emoroachments of stpops,
areas,cellarsteps;trim and comicessif any,ty paanystreet or highway;
(d) Real estétetagèsthatare a linil,
btitare netyetdue andys;yablepud
(e) Th6otherittatters,ifany, includinga surveyaceptionJet forthka Ride aj‡ached
10. GOvermadal Violations and Orders. (a)Sellershan comply With allnotesornotices ofviolationsoflaw :äunicipal
ordinaé¼orders or nqnirements noted of issuedas of the
datehereofbyany govemachte depattratathaving adhorhy este
lands,housing; buildiage,firshealth,environmental and laborconditions rdicrimgthe Premhess thePremises shellbe conveyed
fl·ee ofthemat Closing/Selletshaufurnish Purchaser With any authorizations
necessaty to make the searches
that oulddhdose
thee inu¾&
11 Sellers Representat ous. (a).Seller
reprsents and warrants to Purchaserthat
(i) ThaPrentisës abuWr have a rightofaccess to spunic toad
(ii) Selleris thesoleowner of the Premisesand hás the power
fullright, and anthority1n and
sell3 convey transferthe samein
accórdánce with theterms of thiscontract;
(ifÇ Selleris pota "foreigtiperson,"
as thattemï is definedfarpurposes ethoPoreigninvestment in Tax
RealPrbpedy Act,
hiteraw Reventre Code ("IRC") Sectiott1445,As antended, and theregulationspremegee¾±hered (collectivelý
"FIRPTA");
(iV) The Prentise&arenotaffectedbyany exemptiona or alatement¢eftaxessud
(v) sellerhanteenknowntynoothernameforthpasttenyears,except
Rd8T350tt6R06tts(j1/00)
SSAÉS iiisidBRti@l -4- t11eIätia
020DhitiMI1éWBbnder4CO, ataindaro Ordu
FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019
M . hh
Sellercovenants and warrantsthatallofthe representationsand Warrantiesset forâ1inthiscontractshallbetra6 and
(b)
correctat Closing;
Except as otherwise set forthin this none
contract, of Selletscovenants, representationsiwarräntles
or other
(c) expressly
obligatianscontained contract
in this shallsurvive Closing
12. CoaditiGA of Property. Purchaser acknowledges and regeme thatPorchaser aware
is fully ofthephysical enditibn and
stateofrepair of1hekmi= and of allotherpropertyindluded inthissalerbased on Purchasets own kspectim aidinvestigation
thereoitand thatPurchaser Is entering
intothis contract upon
based solely such inspectionand investigation
and ndt tpen any
st4emeds or represtahs wsittenor orabas tothephysical condhié¼ stateofrepair,use3cost ofoperationof
information,data,
othermatter relatedtoth6Premises atthe otherpropertyincluded inthe salecgiven ormade by Selleror its and
representatives,
any
is" stateof repairsubjectioreasonable tearand ¼atural
shallaccept thesame "as in their
present canditionand use, wear,
detederaticñ between thedate hereofand the dateof closing(exceptas otherwisesetforthin paragraph 16(e)) withoutany
reductionin thepurchass priceor claim ofany idnd forany change insuch condition by reasonthereofsubsequent†o the dateof this
contract.Purchaserand itranthorized shallhave
representatives the right;
at reasonabletimes and upon reasonablejnotice(by
telephoneor otherwise)to Sener,toinspectthe premises beforeClosing.
11 Insurable Title.Selletshallgiveand Purchaser shallacceptsuch titleas any reputable title
hsurance or alistract
compaiy
iteensedto do bùsinessin thestateof New York
shallbe willingtoappròve and insure inaccordahoe with its sandardfong oft1tlepolicyapproved by the New toric State insurance
Deparknent, subjectorily proWded
to theanatters forin thiscontact.
R Closing,Deed ned Title. (a)
"Closing"
means the settlement chligations
of the of Sener and Purchaserto eack otherunderthis
contract,includkg the payroentofthe purchase price and
to seller, the deliverytoPurchaser of a argain and salewith covcñant
against grantore acts deed in proper short
statutory fòrm forrecord3duly executedand
Racwledged, so as to
convey to Purchaserfee sirnpletitle
to the Tremisetfreeof allencumbrances, exceptas otherwiseherein
stated Jhe deed shallcontak a covenantby Selleras requiredby aubd.5 of Section
13 of the LieuLawL
(b) IfSelleris a corporatiourit
shalldelivertoPurchaser atthe timeof Closing(I)a resoibtionof its Boardof Directors
nuthorizingthe saleand deliveryof thedee( and a
(ii) cartiacetebythe SecretaryorAssistant Secretaryofthicorporation certifying
such resohitióúand settingforthTacts showingthatthe isin
transfer confonnity withthe requirements ofSection 9 of the Business
Corporatién Law. The deed in huchcase shall
contain sufficient
a recital toestablishcompliance with thatSectica
15. Closing Date näd PIke. Closing shal1takeplace at the office
Of Wilkie & Wilkie,33Ri1tch Avenue, Hemphtead, New york
11550
at lik00 Alvf elockon or about , W19 òr,upon reasonablenotice (by telephoneér otherwise)by
Puròhaser,at theofficeof
15 Conditions to Cloafag. Thiscontgct and Purchaser's obligation
to purchase thePremises are alsosubjecttoand conditioned
upon the fulfdimentof thefollowing cenditionsprecedent;
(a) The accuracy 5of the date ofClosing, oftherep‡6sentationsand warrantiesof Sellermade in thiscontiact.
(b) The deliveryby BellertoPurchaserof a validaüd subdstingCertificateofOccuhneybr otherrequiredt stificate
of
wmyllauct or evidence thatnone was required,covering thehuilding(s)nad a11óf the ¼üpithâäts
bftier leentedon the property
authorizing theiruse as a V#cant hand Subject to Recorded Essement
family dwelling at thedateof Clostng.
(c) The deliverybySellerto Pùrchaserof a certificate
statingthatSelleris nota foreigaperson, which certi$cate be in
shall
the form theA reqo.ired
by FIRPTAcor a withholding certificateota the113 IfSellerfailsiodeliverthe aforesaidcertificate
or)f
Purchaser is notentitledunderFIRPTA torely on such Purchaser
certificate, shan deductand withhold from the p‡öh price
sum equalto 10% thereof(or any lesseramóunt permitted by law) and shallatClosing remitthe withheld atonent iththe required
forkfsto theInternalRevenue36rvice
d:¼TeodelianaS/ SeefueseaW4esweetulkim
vacast-ead4esefèasew enessadegeee
meeken 4eented ede.
agelasale4eer-de e
(g) The delivery byihe partiesofany other reqúiced
ffidavfts as a conditionof recordingthe deed,
7, Deed Transfer and ecording Tazes. At Closing,certified
or bank
official checks páÿableto the orderofthe gpp ate
NY5BA$9 Reid tist RéWEstateFamis (11/00) 4 ©2012Eatthew Balder & Co., A meWrfthelwisl p
FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018
NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019
or onicerin the.amount ofany applicabletransferand/orrecording taxpayable byreason oftheEelivery or
State,City County
ofthe deed ormortgagp, ifany, shallbe deliveredbythe partyrequiredby law orbythis contracttopsy duch transfer
recording
and/or recordingtag togetherwith any requiredtaxretums dulyexecuted and sworA topand such party shancause ány such checks
and returneto be deliveredto theappropriateofEeerpromptly ater Cl4sing. the obligationto payany additionaltai or deficiency
and any interest
oryenalties thersanshal1survive Closing..
18. Apportionments and Other Adjustments; Water Meter andlastanment A=ame± (a) To theextentap the
licable,
following shallbe spportioried
as ofmidnight ofthe day beforethe day ofClosing
taxes,waier charges and tewer reaton the basisof the period
liacal forwhich assessed;($4elc(iii)lnesrest on the
(1)
mortgage; (hry preinituds
on existingtransferableinsurancepallelesand tenewals ofthose expiringpriortoClosing; (v)
existing
vault chargesp(vi)rentsas and when collecte4
ifClosing shalloccur beforea new taxrate is Exed,theapportiomnent of taxesshallbe poA the basi of the taxf
ate for
(b)
the preceding period
fiscal applied ésesse
to the latest valuation.
immediately
thean -chaus***AS anWf-aesha4barra*leaadde eleasemehanetwa
(d) Ifat thedate6f Closing the premisesare affected
by an =e=ent which is or maybecome payáblb b at nual
installmentsrand thefirst
installmentis thena lien or has been paid;then purposes
f br the of this
cogtractallthe aid
instalhnmatsshaR be sonsidered ane 8nd shan be paidby $ellerat or prior
toClosing
Anyerrats. or omissions incomputing apporntonments orotheradjustments it Closing
shaRbe corrected ethin a
(e)
reasonabletime following Closing. This subparagraph shallserviveClostag
IA Allowange fer Unliaid Taxes, etc Sener has theoptionfa creditPurchaser as an Adjustmentto the
purchase ricewith the
smount ef anymnpaid th¼es, assessments,watercharges andmverrents, togetherwhh any arúl
toterest pënaltiesthpreonto a date
not 1mthen fivebusinessdaysafter Closing,provided that hills
official thereforcotaputedto saiddate are pnadued at Closing,
20, Use bf Purchase Price to Remove Enoumbrañccadf ar Closingtherean otherliensor encM*a es that$ lleris obligated
to payor discharge,Scher may use any partionof the sh balance of the purchase
price to payor dischargethem, royided5elle
shallii=n!tmeously deliver toPurchaser at Closinginstruments in recodablefonn sad sufficienttosatisfymeh liehsor
encumbrances of record,togetherwiththe dostofrecording or fillagsaidinstrummits.As an•J†an=#ve Seller
may¼teposit suHiolent
moneys with thetitleinsurancecompany employed by Purchaser acceptableto and requiredby it toassuretheir
diWharge, but onlyif
the dtleinsurance company willinsurehtrchasefs titleileptof the matternor
insure againsttheirenforcement out ofthePremises
and willinsurePurchasers Institutionalledderelearof suchmattersSpon runnininflepriotnotice(by telephoneor otherwise),
Porchaser shallprovide separatecertified
dr oniohl bank checksms tequestedto assistinclearingup these mattats,|
21 Ttle hamination; Seller'sJnabilityto Convey pine s ofLisbility.(a) Purchasershallorderan exâmination of titio
in
respectof the Prëmisesfrom a title
company Ilcensedor authorisedtoissue title
insuranceby the New York StateInsurance
Department or enyagent forsuch title
cornpany promptly af ter the execution
ofthis contractor ifthfecontractia subject
to the
mortgage contingentiyset fo1thinparagraph A aftera mortgage cornmitment has been acceptedbyPacchaser. Purcheser shallcause
a bopy of thetitle
reportand ef anyadditionst%ereto to be delivered
to the for
attorney(s) Sellerpromptly after
receiptthereof
at the
(b)(i)1f date Seller
of Closing is unableto transfer
title
to Purchaserin accordance withthiscontract,or Furchaserhas
other validgrounds forrefusing to dose,whether byteasgo of liens,
markances or otherobjectionsto title
orotlierwise(herein
collectivelycalled"Defects"),othe thanthose subjectto whichParobaser is obligatedtoaccept title
hereunder or whichPurchaser
may have waived f ban those
at14 other which Sellerhas hereinexpressly agreedto remove, remedy or dischargeand ifPurchgser
shallbe unwilling towolve the same and toclose without
title abatement of the purchase then,
price, exceptsahereinafterset forth,
Sener shallhave the right at SeUefs either
sole election, totake such actionas Bellermay deem advisableto renovp,remedy,
discharge orcomply with such Defectsor to. cancel
this contract;
(ii)ifSeller
electsto takeaction tosemove,remedy or comply with
such $91hcts,Sellershallbe entithalfrorgtime toame; upon3rptice to Purchaser,tos4journ the datef br Closing
hereunderfor a
period or periodsnotexegeding 60 days inther aggregate(butnot extendingbeyond thedate upon Which Purchaser¼ mortgage
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Related Content
in Suffolk County
Ruling
BIN YANG VS INTERINSURANCE EXACHANGE OF THE AUTOMOBILE CLUB
Jul 10, 2024 |
Echo Dawn Ryan |
23PSCV01807
Case Number:
23PSCV01807
Hearing Date:
July 10, 2024
Dept:
26
Yang v. Interinsurance Exchange of the Automobile Club, et al.
MOTION TO COMPEL RESPONSES TO INTERROGATORIES, AND REQUEST FOR SANCTIONS
(CCP §§ 2030.300, 2023.010)
TENTATIVE RULING:
Defendant Interinsurance Exchange of the Automobile Clubs (1) Motion to Compel Responses to Form Interrogatories, Set One, and Request for Sanctions; (2) Motion to Compel Responses to Special Interrogatories, Set One, and Request for Sanctions, are
GRANTED.
PLAINTIFF BIN YANG
IS TO SERVE VERIFIED RESPONSES TO THE DISCOVERY REQUESTS, WITHOUT OBJECTIONS, WITHIN 20 DAYS SERVICE OF THIS ORDER.
PLAINTIFF BIN YANG IS ALSO
ORDERED TO PAY SANCTIONS OF $570.00 TO DEFENSE COUNSEL WITHIN 20 DAYS SERVICE OF THIS ORDER.
ANALYSIS:
On January 9, 2024, Defendant Interinsurance Exchange of the Automobile Club (Defendant) served Form Interrogatories, Set One, and Special Interrogatories on Plaintiff Bin Yang (Plaintiff). (
Motions, Vallone
Decl., Exh. 1.) Despite a meet and confer effort extending the deadline to serve verified responses without objections, Plaintiff has not served responses to the discovery. (
Id
. at ¶¶5-7 and Exh. 2.) Defendant filed the instant (1) Motion to Compel Responses to Form Interrogatories, Set One, and Request for Sanctions; and (2) Motion to Compel Responses to Special Interrogatories, Set One, and Request for Sanctions, on June 7, 2024. No oppositions have been filed to date.
Discussion
Based on Plaintiffs failure to serve initial responses to the discovery, the Motions to Compel Responses to Interrogatories, are granted. (Code Civ. Proc., § 2030.290.) There is no requirement for a prior meet and confer effort before a motion to compel initial responses can be filed. (Code Civ. Proc., § 2030.290.) Furthermore, the motion can be brought at any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2030.290.) Therefore, Defendant is entitled to an order compelling Plaintiff to serve verified responses to the interrogatories without objections.
Plaintiffs failure to timely respond constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Sanctions are appropriate under Code of Civil Procedure sections 2023.010 and 2023.030 and have been properly noticed. However, the amount sought is excessive for simple and unopposed motions. Pursuant to a lodestar calculation, sanctions are awarded against Plaintiff in the amount of $570.00 based on two hours of attorney time billed at $225.00 per hour and costs of $60.00 per motion. (Motions,
Vallone
Decl., ¶¶10.)
Conclusion
Defendant Interinsurance Exchange of the Automobile Clubs (1) Motion to Compel Responses to Form Interrogatories, Set One, and Request for Sanctions; (2) Motion to Compel Responses to Special Interrogatories, Set One, and Request for Sanctions, are
GRANTED.
PLAINTIFF BIN YANG
IS TO SERVE VERIFIED RESPONSES TO THE DISCOVERY REQUESTS, WITHOUT OBJECTIONS, WITHIN 20 DAYS SERVICE OF THIS ORDER.
PLAINTIFF BIN YANG IS ALSO
ORDERED TO PAY SANCTIONS OF $570.00 TO DEFENSE COUNSEL WITHIN 20 DAYS SERVICE OF THIS ORDER.
Moving party to give notice.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 10, 2024 |
CVCV21-0197618
JOHNSON, ET AL VS. PARENT, ETAL
Case Number: CVCV21-0197618
This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration
on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that
Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s
calendar to discuss the status of arbitration.
Ruling
Brian Folland vs. Denna Rogers
Jul 10, 2024 |
21CECG01468
Re: Folland v. Rogers
Superior Court Case No. 21CECG01468
Hearing Date: July 10, 2024 (Dept. 501)
Motion: Plaintiff/Petitioner’s Petition to Confirm Arbitration Award
Tentative Ruling:
To grant, confirming the arbitration award in favor of plaintiff/petitioner in the
amount of $76,265 plus $435 in costs, and $14,709.74 in prejudgment interest, for a total
of $91,409.74. Plaintiff/petitioner is directed to submit a proposed judgment consistent
with the court’s ruling within 7 days of the service of the minute order.
Explanation:
Any party to an arbitration in which an award has been made may petition the
court to confirm the award. The petition shall name as respondents all parties to the
arbitration and may name as respondents any other person bound by the arbitration
award. (Code Civ. Proc., §1285.)
A petition shall: (a) set forth the substance or have attached a copy of the
agreement to arbitrate unless the petitioner denies the existence of such an agreement;
(b) set forth the names of the arbitrators; and (c) set forth or have attached a copy of
the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., §1285.4.)
If a petition is duly served and filed, the court shall confirm the award as made,
whether rendered in this state or another state, unless it corrects the award and confirms
it as corrected, vacates the award or dismisses the proceeding. (Code Civ. Proc., §1286.)
Here, the moving papers conform to the requirements set forth in the Code of Civil
Procedure sections 1285 and 1285.4. In accordance with Code of Civil Procedure,
section 1285, petitioner names Denna Rogers as the party to be bound by the arbitration
award.
A copy of the arbitration agreement is attached to the Complaint which
commenced this action. (Compl., Exh. A.) Also, a copy of the arbitrators’ award is
attached to the Petition. (Petn., Attachment 6C.) The Petition and Notice of Hearing were
properly served on June 6, 2024 by mail. The Petition also provides that the arbitration
award was served to respondent on July 7, 2022. (Petn., Item 7.) The Petition provides that
the arbitration award is binding because more than 30 days have passed since notice of
the award was mailed, and no party filed a rejection of the award or requested for trial.
(Petn., Item 8(b).) Further, the Petition is unopposed and no evidence indicating any
application has been made to correct or vacate the award, and the statutory period for
making such application has now passed. (Code Civ. Proc., § 1288. [“A petition to
vacate an award or to correct an award shall be served and filed not later than 100 days
after the date of the service of a signed copy of the award on the petitioner.”].)
Thus, the Petition to confirm the arbitration award is granted. However,
Plaintiff/Petitioner has calculated the prejudgment interest to the date of September 17,
2024. The court calculates the prejudgment interest to be $14,709.74.1
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: DTT on 7/9/2024 .
(Judge’s initials) (Date)
1This figure is calculated using an interest rate of 10% per annum from the date the arbitration
award became binding, August 6, 2022 (30 days following the day the award was mailed) through
July 10, 2024 (the hearing date of this petition).
Ruling
Romano vs Golden State Lumber
Jul 10, 2024 |
MSC-192506
MSC-192506, Romano v. Golden State Lumber
Defendant’s unopposed Anti-SLAPP motion is DENIED. Defendant’s request for judicial notice
is GRANTED. Due to the lack of opposition, the Court’s minute order shall constitute the order of the
Court.
The Court notes that the reply brief references an opposing brief, but there has been no opposing
brief filed with the Court. Nonetheless, as explained in detail below, Defendant did not meet its burden of
showing that the action arises out of protected activity.
I. Background
On January 17, 2023, Defendant Golden State Lumber filed a limited jurisdiction collections
action in this Court against its customer Generator Joe, Inc. and its personal guarantor, Joseph Romano,
(MCV-260730) due to an unpaid credit account balance. Defendant’s complaint includes a mechanics lien
foreclosure cause of action against Generator Joe, Inc.’s property. Generator Joe, Inc. did not file an
answer to the complaint. However, Plaintiff Joseph Romano subsequently filed the instant small claims
action on March 2, 2023. The small claims action was transferred to this court, but was not consolidated
with MCV-260730.
Defendant Golden State Lumber, Inc. herein alleges that the small claims action was filed in
retaliation for Golden State not abandoning its collections action and not abandoning its mechanics lien
rights and remedies. Defendant contends that its lawsuit, service of preliminary notices in relation to the
mechanics lien, and ultimate recordation of the mechanics lien is protected activity; thus, the entire small
claims action should be stricken.
II. Analysis
A. Burdens on an Anti-SLAPP Motion
CCP § 425.16(b)(1) provides that a cause of action against a person “arising from any act of that
person in furtherance of the person’s right of petition or free speech under the United States Constitution
or the California Constitution in connection with a public issue” shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim. CCP § 425.16(e)(1) defines the foregoing phrase to include “any
written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law.” “In making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is
based.” (CCP § 425.16(b)(2).)
A defendant has the initial burden to make a prima facie showing that the complaint “arises from”
her exercise of free speech or petition rights. (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102
Cal.App.4th 449 at 458-59.) “At the first step of the analysis, the defendant must make two related
showings. Comparing its statements and conduct against the statute, it must demonstrate activity
qualifying for protection. (See § 425.16, subd. (e).) And comparing that protected activity against the
complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff's claims.”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887.) If defendant meets that initial burden,
the burden shifts to the plaintiff to establish a “probability” that he will prevail on the claims which are
based on protected activity. (CCP § 425.16(b).)
To establish a “probability” of prevailing on the merits, the plaintiff must demonstrate that the
claim is both legally sufficient and supported by a prima facie showing of facts sufficient to support a
favorable judgment if the evidence submitted by the plaintiff is credited. (Navelier v. Sletten (2002) 29
Cal.4th 82, 89.) The court does not weigh credibility or comparative strength of the evidence in making
this summary judgment-like determination. (See, e.g. Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 291.) But to demonstrate a probability of prevailing on the merits, the plaintiff must produce
admissible evidence sufficient to overcome any privilege or defense that the defendant has asserted to the
claim. (See, e.g. Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) In making its determination, the Court
considers the pleadings, as well as supporting and opposing affidavits. (CCP § 425.16(b).) The court
considers defendant's evidence only to determine if it defeats plaintiff's showing as a matter of law.
(Soukup v. Law Offices of Herbert Hafif, supra, at 291.) The court must accept as true the evidence
favorable to plaintiff. (Ibid.)
B. Defendant Has Not Met Its Burden to Show that Plaintiff’s Allegations Arise Out of
Protected Activity
“The defendant's burden is to identify what acts each challenged claim rests on and to show how
those acts are protected under a statutorily defined category of protected activity.” (Bonni v. St. Joseph
Health Sys. (2021) 11 Cal. 5th 995, 1009.) “‘[T]he statutory phrase ‘cause of action ... arising from’
means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act
in furtherance of the right of petition or free speech.’” (CKE Restaurants, Inc. v. Moore (2008) 159
Cal.App.4th 262, 269–70. Italics in original.) “‘In the anti-SLAPP context, the critical point is whether the
plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or
free speech.’” (Ibid. Italics in original.)
Here, Plaintiff’s allegations are as follows:
Plaintiff ordered approx [sic] $38,000 in lumber which was specificed [sic] by Plaintiff to be
redwood construction heart. Defendant delivered a large load of material, but not all that was
ordered, and on inspection Plaintiff discovered that the lumber delivered did not meet the
specifications of material ordered. Plaintiff contacted Defendant and Defendantgs [sic]
management employee agree [sic] to take the materiasl [sic] back without charge. Defendant later
claimed material was missing and demanded restocking fees and other charges. Plaintiff
demanded labor reimbursemen [sic]” [The allegations end here.]
Though Defendant claims that Plaintiff’s small claim action arises out of activity protected by the
litigation privilege, none of the allegations raised by Plaintiff involve protected activity. Defendant fails to
identify which allegations implicate such protected activity. Plaintiff does not complain of Defendant’s
act of filing its own complaint nor of Defendant’s acts in pursuing the mechanics lien. The mere timing of
the filing of the small claims action alone is not sufficient to show that the complaint arises out of
protected activity without more. The simple raising of counter allegations of breach is not sufficient to
show that the claims arise out of protected activity. Furthermore, though defendant has submitted
evidence that Plaintiff demanded in an email that the preliminary notice be dropped to avoid legal
challenge, this does not show that this small claims action arose out of protected activity because Plaintiff
does not challenge the preliminary notice. The allegations raised by Plaintiff solely involve the underlying
dispute and do not challenge Defendant’s legal actions.
The cases cited by Defendant are inapposite. For example, in CKE Restaurants, Inc. v. Moore
(2008) 159 Cal.App.4th 262, which involved a declaratory relief action seeking determination regarding
compliance with Proposition 65, “CKE's action arose entirely from the filing of the Proposition 65
notice.” (Id. at 271. Italics in original.) “‘…[W]ithout the Notice, there would have been no actual, present
controversy, and no controversy at all.’” That is not the case here as there does exist a controversy without
Defendant’s complaint and mechanic’s lien and Plaintiff’s small claims action makes no mention of
either. The case of Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th
873, involved statements made in anticipation of a lawsuit. Defendant has not identified any statements or
writing made by it that Plaintiff challenges in this small claims action. The case of Comstock v. Aber
(2012) 212 Cal.App.4th 931, involved the question of whether statements made to an HR manager could
be considered statements made in anticipation of litigation. There are no similarities between the facts of
that case and the facts of the present case.
While Defendant argues that the “gravamen” of Plaintiff’s small claims action is that “Golden
State never should have made demands on Generator Joe Inc. to satisfy its outstanding credit account
balance” and that Plaintiff filed this action only after Defendant sued to foreclose on its mechanics lien,
the California Supreme Court has “rejected the ‘gravamen’ approach in evaluating anti-SLAPP motions
directed to an entire cause of action or complaint, holding that each allegation of protected activity must
be evaluated separately.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial, § 7:775 (2024); see
also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010-1011.) If the Court were to adopt the
“gravamen” approach, it would “risk saddling courts with an obligation to settle intractable, almost
metaphysical problems about the ‘essence’ of a cause of action that encompasses multiple claims. (Id. at
1011.) Plaintiff has made no allegations of protected activity.
Since Defendant has failed to show that any of Plaintiff’s claims arise out of protected activity, the
Court need not move on to the second prong of its analysis to determine whether Plaintiff’s claims have a
likelihood of success on the merits.
Ruling
J.B. HUNT TRANSPORT, INC. VS CONTRACTOR'S WARDROBE, INC.
Jul 09, 2024 |
24CHCV00391
Case Number:
24CHCV00391
Hearing Date:
July 9, 2024
Dept:
F43 Dept. F43
Date: 7-9-24
Case #24CHCV00391,
J.B. Hunt Transport, Inc. vs. Contractors Wardrobe, Inc.
Trial Date: N/A
DEMURRER WITH MOTION TO STRIKE
MOVING PARTY: Defendant Contractors Wardrobe, Inc.
RESPONDING PARTY: Plaintiff J.B. Hunt Transport, Inc.
RELIEF REQUESTED
Demurrer to the Complaint
·
2
nd
Cause of Action for Common Counts
·
3
rd
Cause of Action for Unjust Enrichment
Motion to Strike
·
Request for attorneys fees and costs of suit herein incurred and according to the Agreement in Plaintiff's Prayer [p. 6:17-18 of the Complaint]
·
Attorneys fees [pp. 4:16, 4:25, 5:6, 5:8, and 5:13]
·
Request for special and consequential damages in Plaintiffs Prayer [p. 6:15]
RULING
: Demurrer is sustained; motion to strike is granted.
SUMMARY OF ACTION
Plaintiff J.B. Hunt Transport, Inc. (Plaintiff) is alleging that it entered into a written agreement with Defendant Contractors Wardrobe, Inc. (Defendant). The written agreement, titled Dedicated Contract Services Transportation Agreement, was signed on March 12, 2020. The Agreement is attached as Exhibit A to Plaintiffs complaint. Pursuant to the terms of the Agreement, Plaintiff was to provide transportation of Defendants good throughout California for an initial term of five years, beginning on April 1, 2020.
Plaintiff alleges that Defendant terminated the Agreement on August 25, 2023, effective September 9, 2023. Plaintiff is alleging that Defendant has failed to pay Plaintiff for services provided by Plaintiff under the Agreement at the total costs of $1,448,158.87. Plaintiff also alleges that Defendant failed to pay Plaintiff $340,282.82 in unamortized start-up costs and permanent delete charges.
Plaintiffs complaint, filed on February 8, 2024, alleges three causes of action for (1) breach of contract, (2) common counts, and (3) unjust enrichment. Defendant filed its demurrer and motion to strike on May 13, 2024. Defendant demurs to Plaintiffs Second and Third Causes of Action.
Plaintiff filed an opposition to Defendants demurrer and motion to strike on June 25, 2024.
ANALYSIS
A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also
Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (
Postley v. Harvey
(1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& (
Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (
Picton v. Anderson Union High School Dist.
(1996) 50 Cal.App.4th 726, 733.)
Second Cause of Action for Common Counts
Defendant demurs to Plaintiffs Second Cause of Action for Common Counts on the basis that it fails to state facts sufficient to state a cause of action and is uncertain.
Defendant argues that Plaintiffs cause of action for common counts pleads four different types of common counts that should have been listed as separate causes of action. Those four distinct common counts are (1) open book account; (2) account stated; (3) goods and services rendered; and (4) money had and received.
Each cause of action, count, or defense must be separate stated and given a separate number. (Cal. Rules of Court Rule 2.112.) Defendant argues that the four common counts listed by Plaintiff should be distinct causes of action because they each have separate jury instructions: Money Had and Received (CACI § 370); Goods and Services Rendered (CACI § 371); Open Book Account (CACI § 372); and Account Stated (CACI § 373).
Demurrers have long been sustained when separate causes of action are not listed separately. (
Haddad v. McDowell
(1931) 213 Cal. 690, 692;
Campbell v. Rayburn
(1954) 129 Cal.App.2d 232, 235 (the special demurrer was properly sustained because the complaint was defective in that two purported causes of action were not separately stated).)
Plaintiffs opposition does not address Defendants arguments that the common counts should be listed separately. Instead, Plaintiff only argues that common counts are not subject to fact pleading standards. However, as Defendant argues in its reply, the case that Plaintiff cites in support of this argument sustains a demurrer to common counts for failing to comply with facts pleadings standards. (
Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 (demurring to common counts because plaintiff failed to comply with fact pleading standards by pleading them in a conclusional fashion).)
Defendants demurrer to this cause of action is sustained on the basis that the common costs listed under this cause of action should be pled as separate causes of action.
Defendant also demurs to this cause of action on the basis that it improperly pleads common counts seeking the same damages as the breach of contract cause of action.
Plaintiffs cannot simultaneously: (1) plead that an enforceable express contract exists; and (2) plead common counts seeking the same relief for the same alleged breach. (See
Leoni v. Delany
(1948) 83 Cal.App.2d 303, 307 (It is the unenforceability of an otherwise valid contract which gives rise to the right of relief through the medium of a common count.);
Moore v. Bartholomae Corp.
(1945) 69 Cal.App.2d 474, 477 (The law is established in California that a debt which is predicated upon the breach of the terms of an express contract cannot be the basis of an account stated.).)
Plaintiffs complaint alleges that the damages sought by the common counts cause of action are the same as those caused by Defendants breach of a valid and enforceable contract. (See Comp., ¶¶ 12, 13, 18, 22, 24, 29, 31, and 33.) Two of the common counts also expressly allege that they are based on an alleged breach of contract and seek breach of contract damages. (See Comp., ¶¶ 20-21; 24-25, 27.)
Plaintiffs cause of action for common counts is based on the same damages as Plaintiffs cause of action for breach of contract and is therefore improperly pled. Defendants demurrer to the second cause of action can also be sustained on this basis.
Defendant also argues that the second cause of action is uncertain because Plaintiff does not plead that it is an alternative to the breach of contract cause of action and instead pleads it as its own distinct cause of action. Plaintiffs opposition argues that the common counts are pled in the alternative, but as Defendant points out in its reply, there is no language in Plaintiffs complaint indicating that the common counts are being pled as an alternative to the breach of contract cause of action. The opposition also does not explain how the common counts could be pled in the alternative.
Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend for the reasons given above.
Third Cause of Action for Unjust Enrichment
Defendant demurs to Plaintiffs Third Cause of Action for Unjust Enrichment on the basis that it fails to state facts sufficient to state a cause of action against Defendant.
Defendant argues that demurrer to this cause of action is appropriate because there is no cause of action for unjust enrichment in California. (
Melchior v. New Line Productions, Inc.
(2003) 106 Cal.App.4th 779, 785, 793 (unjust enrichment is not a valid cause of action under California law).) Defendant further argues that unjust enrichment cannot stand as its own cause of action. (See
Everett v. Mountains Recreation & Conservation Authority
(2015) 239 Cal.App.4th 541, 553.)
Plaintiffs opposition does not address Defendants argument that unjust enrichment is not a cause of action in California. Plaintiff cites CACI § 375 in its opposition, but that section does not apply to the unjust enrichment that Plaintiff has pled because it involves third-party middlemen, and that section states that unjust enrichment is not a cause of action.
Defendant also argues that even if there were a cause of action for unjust enrichment in California, this cause of action would also be duplicative of Plaintiffs breach of contract cause of action because it requests the same damages. (See Comp., ¶ 37.)
Because there is no cause of action for unjust enrichment in California, Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend.
Motion to Strike
A court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, [a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. Under CCP § 436(a), [t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading. Under CCP § 436(b), the court may [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.
Attorney Fees
Defendant has requested that Plaintiffs request for attorney fees be stricken because attorney fees are available only when provided for by contract or statute. (CCP §1021.)
Plaintiffs complaint claims that it can recover attorney fees according to the Agreement, but the Agreement makes no provision for attorney fees. Plaintiff also makes this claim in its opposition, but its claim is not supported by reference to any section of the Agreement. Plaintiff does refer to Paragraph 3(a) on page 2 of the Contract, but that paragraph only mentions costs, not attorney fees.
Accordingly, Plaintiffs request for attorney fees is ordered stricken from the complaint.
Special and Consequential Damages
Plaintiff also requests special and consequential damages, but Defendant points out that the alleged relevant agreement expressly prohibits the parties from seeking such damages. (Wilson Decl., Ex. A, § 6(d) (in no event will either Party be liable for incidental, consequential (including lost profits and chargebacks), special, punitive or exemplary damages in connection with the goods or the services rendered hereunder even if notice was given of the possibility of such damages and even if such damages were reasonably foreseeable).)
Plaintiff argues in its opposition that it does not seek damages for the goods or services rendered; rather, Plaintiff seeks damages for Defendants unilateral cancellation of the contract. However, Plaintiff does not give a basis for seeking special and consequential damages for the cancellation of the contract. Furthermore, Defendant argues in its reply that terminating the services under a service contract arises in connection with&the services rendered hereunder. Therefore, the provision cited above could, in fact, apply to this situation.
Because the requested damages are based on a breach of the Agreement but the Agreement forbids recovery of such damages, Plaintiffs request for special and consequential damages is ordered stricken from the complaint.
CONCLUSION
Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend. Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend.
Defendants motion to strike is granted.
Plaintiff is given 30 days leave to amend.
Moving party to give notice to all parties.
Ruling
RAYMOND GHERMEZIAN, ET AL. VS ALMA NUNEZ, ET AL.
Jul 09, 2024 |
23STCV13104
Case Number:
23STCV13104
Hearing Date:
July 9, 2024
Dept:
61
RAYMOND GHERMEZIAN, et al. vs ALMA NUNEZ, et al.
TENTATIVE
Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APCs Motion for Protective Order is DENIED. No sanctions are awarded. Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APCs Motion to Compel Deposition of Defendant Joseph H. Low IV is GRANTED. No sanctions are awarded. Defendant Joseph H. Low IVs Motion to Compel Deposition of Plaintiff Raymond Ghermezian is GRANTED. No sanctions are awarded. Plaintiffs to give notice.
DISCUSSION
MOTION FOR PROTECTIVE ORDER Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc. 2025.420, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc., § 2025.420, subd. (b).) Plaintiff Raymond Ghermezian (Plaintiff) moves for an order preventing Defendants Alma Nunez and Joseph H. Low, IV (Defendants) from using an audio recording made by Nunez in the presence of Plaintiff without his consent in discovery, hearings, mediation, or any other purpose in this matter. (Motion at p. 2.) Plaintiff states that Nunez made an audio recording of him speaking to her regarding the underlying case, a fact revealed to him on May 28, 2024, during mediation in this matter.. (Ghermezian Decl. ¶ 3.) Plaintiff states the recording was played for the mediator and partially for himself. (Ibid.) Plaintiff contends that he did not consent to be recorded. (Ghermezian Decl. ¶ 4.) He argues that Defendants likely intend to present the recording at his deposition, in order to elicit testimony that may contradict its contents. (Ghermezian Decl. ¶ 5.) Defendants have no produced the recording in discovery. (Ghermezian Decl. ¶ 5.) Plaintiff relies on Penal Code § 632, which makes guilty of a misdemeanor any person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio. (Penal Code § 632, subd. (a).) This same statute states: Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding. (Penal Code § 632, subd. (d).) Defendants argue that Penal Code § 632s prohibition does not apply here, because the presence of a third person during the recorded conversation evidenced by a third voice on the recording renders the conversation not confidential. (Opposition at pp. 89.) But Defendants cite no authority for this argument, and it is contradicted by the statutory text. The statute prohibits a persons recording of a confidential communication without the consent of all parties, and does not indicate a limitation to bilateral communications between two persons. (Penal Code § 632, subd. (a), italics added.) The statute defines confidential communication to mean any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, once more indicating no limitation of confidentiality to two persons. (Penal Code § 632, subd. (c).) Defendants further argue that Penal Code § 632 is not applicable to civil proceedings(Opposition at p. 8), but this argument is contradicted by the statutory language itself, which prescribes inadmissibility in any judicial . . . proceedings, naturally including civil cases. (Penal Code § 632, subd. (d).) It is also contradicted by case authority, which has gone on to apply the provision to civil proceedings. (See Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1492 [Neither the tainted recordings nor the notes derived from them can be read in evidence.].) Defendants arguments for the inapplicability of Penal Code § 632 is therefore unpersuasive. But regardless of whether or not Penal Code § 632 is applicable, Plaintiff has not shown good cause for the protective order he seeks here. Plaintiff seeks a total prohibition on the use of the recording, a sweeping order finding no basis in the operative statute. The legislature has defined the remedy appropriate for illicit recordings, which include criminal penalties and direction that such evidence be not admissible in judicial proceedings. (Penal Code § 632, subd. (d).) Plaintiff in fact misquotes the statute in his motion, stating that it prohibits the use of any illegal recording in any judicial, administrative, legislative, or other proceeding. (Motion at p. 5, italics added.) But the statute does not prohibit the recordings use; it renders the recording not admissible. (Penal Code § 632, subd. (d).) Such a recording therefore may not be admitted into evidence but it may be used for other purposes, such as, refreshing the recollection of the parties to the conversation. (See Frio, supra, 203 Cal.app.3d at p. 1494 [[W]e are unaware of any decision holding that a witness may not testify after simply refreshing recollection with tainted evidence.].) Plaintiff is therefore not entitled to a protective order. The motion for protective order is therefore DENIED. II. MOTION TO COMPEL DEPOSITION A party may make a motion compelling a witnesss deposition after service of a deposition notice if that witness fails to appear for examination, or to proceed with it. (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).) In competing motions, Plaintiff seeks to compel the deposition of Defendant Joseph R. Low, IV (Low), and Defendants seek to compel the deposition of Plaintiff. Defendants served Plaintiff with a deposition notice on April 30, 2024, with the deposition set for May 17, 2024, for which Plaintiff failed to appear after serving objections based on his lack of availability. (Lewis Decl. ¶¶ 34, Exhs. A, B.) Plaintiff stated in informal correspondence that
he has priority for his deposition because he had noticed Lows deposition to take place first. (Lewis Decl. Exh. E.)
Plaintiff, meanwhile, served Low with a deposition notice on February 1, 2024, with the deposition noticed for February 16, 2024. (Ghermezian Decl. ¶ 3, Exh. A.) Low objected to the date and to the requests for production on February 8, 2024. (Ghermezian Decl. ¶ 4, Exh. B.) Plaintiff sent an email on February 8, 2024, seeking alternative dates to depose Mr. Low in my office in February. (Ghermezian Decl. Exh. C.) Defendants evidently provided no dates. In a March 7, 2024 email, Defendants counsel told Plaintiff that Lows trial calendar one lasting six to eight weeks, another expected to last ten days would prevent his attendance at a mediation any earlier than the May 28 date offered by the mediator, (Ghermezian Decl. Exh. E.) But Defendants declined to offer dates for Lows deposition, even after noticing Plaintiffs deposition for May 17. (Ghermezian Decl. Exh. D.) Both parties motions shall be granted, and both Ghermezian and Low compelled to attend deposition. Both parties object on the basis of availability, yet neither have provided any dates of availability for the depositions to proceed. Plaintiff argues that he is entitled to take the deposition of Low first because he noticed the deposition first. (Opposition at pp. 23.) Plaintiff was not so entitled, because the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party. (Code Civ. Proc., § 2019.020, subd. (a).) Plaintiff relies on State Bar civility guidelines stating, When another party notices a deposition for the near future, absent unusual circumstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsels agreement. (Cal. Attorney Guidelines of Civility and Professionalism, § 9, subd. (a)(1).) But the taking of Lows deposition during the time allotted by Plaintiff was prevented by Lows trial schedule. And in any event, these guidelines do not excuse either partys refusal to offer dates, in light of an express statutory directive against Plaintiffs argument limiting discovery based on priority. In addition to compelling Lows attendance at deposition, Plaintiff also seeks an order directing him to produce documents responsive to three requests for production contained in the deposition notice, which seek documents related to the settlement and Nunezs client file. (Motion at p. 5; Ghermezian Decl. Exh. A.) Although Defendants argue that they have already responded to similar requests offered as inspection demands (Opposition at pp. 34), Plaintiff may seek the same discovery by deposition notice that they earlier sought by written discovery, if they are dissatisfied with the earlier responses. (See Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997 [[T]he inspection of documents procedure is quite different from a deposition at which a party is required to bring documents. Nothing in either section 2025 or section 2031 suggests that seeking documents under one statutory procedure bars a litigant from seeking the same documents under the other.].) The documents sought here relate to the subject matter of the action, and good cause for the production has been shown, subject to a privilege log under Code of Civil Procedure § 2031.240. The motions to compel deposition are therefore GRANTED. III. SANCTIONS If a motion to compel deposition is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom
the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2025.450, subd. (g)(1).)
Plaintiff seeks $2,400.00 in sanctions against Defendants and their counsel, representing six hours of attorney work at $400 per hour. (Ghermezian Decl. ¶ 11.) Defendant Low seeks $3,660.00 in sanctions against Plaintiff, representing six hours of attorney work at $600 per hour plus a $60 filing fee. (Lewis Decl. ¶¶ 1315.) No sanctions are awarded on either motion, as the parties have obtained relief against each other. Sanctions are also mandatory against the party who unsuccessfully makes or opposes a motion for a protective order, absent substantial justification or other circumstances that make the award of the sanctions unjust. (Code Civ. Proc. § 2025.420, subd. (h). Plaintiff seeks $2,100.00 in sanctions, representing a miscalculation of seven hours of attorney work at $400, which should yield a total of $2,800.00. (Ghermezian Decl. ¶ 7.) Defendants in turn seek $2,880.00 in sanctions on the same motion, representing a miscalculation of 4.5 hours of attorney work at $600 per hour, which should yield a sanctions request of $2,700.00. (Lewis Decl. ¶ 13.) No sanctions under the protective order motion are appropriate, as Plaintiff sought the order based on a misinterpretation of the reach of Penal Code § 632, subd. (d), and Defendants opposed it based on a misinterpretation of Penal Code § 632, subd. (c). It would therefore be unjust to award sanctions to either party
Ruling
KF SUNRAY, LLC VS FRANCIS MEJIA
Jul 09, 2024 |
24STCV05465
Case Number:
24STCV05465
Hearing Date:
July 9, 2024
Dept:
52
Tentative Ruling
Order to Show Cause Re: Default Judgment
Plaintiff KF
Sunray, LLC dba Sunray Healthcare Center requests court judgment by default against defendant Francis Mejia aka Francis R. Mejia, Sr. aka Francis R. Mejia.
Plaintiffs application meets all requirements for default judgment.
Plaintiffs request for default judgment is
granted
.
The court will sign the proposed judgment plaintiff submitted on form JUD-100 and will enter judgment.
Ruling
Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Document
Joseph Deluca, Angelo Costanza, Frank Costanza v. Michael Cave, Strongarm Ventures, Port Ridge Construction, Northfork Gateway, Ncga Llc, 41 Summit Llc, The Reilly Law Group, Jennifer Reilly Esq
Mar 31, 2021 |
J-COMM Garguilo |
Commercial - Contract |
Commercial - Contract |
601996/2024
Preview
FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019 EXHIBIT A FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019 i RESIDENTLLL CONTRACT OFSALE JointlyPrepredbytheRealProperotHectionqftheWewYarkStateBarAnoctattop,.theNetYörkStateLandDtimAacciatimutheCasis eoitRealPñpertykt oftheAnäctâtionofmeBarofGeClyøfWewY0thandtheComm(tleeanFedlPropertyLawoftheWewforkCoundyfawyerfAssociation.gl|007 CONSULT TOUR LAWYER BEFoBE SIGNING TEUS CONTRACT. NOTst PrengDcascaLTY LOS$RS AND CONDEMNMtf01.t This contmethdoesnot pavide forwhthappens in theovest oche.dothercasually lessor =ñ÷áQbëtote thetide doskg. Weihtpro inhis madebtthia ooptmg3ectionSQ1l ofthd GeneratObligationsLawwill Apply.Onepart offhat law poemif66 of th makesa#urchasehesponsible16rScoád casuahytosupontaing Premisesbdreb title desiu WARNING: PLADf LANGUAGEMo=rWraica hnade thatodgibun ofcontmet fbrtheath eadyerchaseofreat estcoer.¡ñin widiSectionB-702 ofthe0enerni cMainianspase"). obligationstan CONTRACT OF SALB mgde as of ? / between 3 Eugene Hubberd Address: Wo lviainStreet,Wes ham ptonBeach, New York 11978 Social Nuthber/Fe& L D No(sh herefnater cãlled"Seller" and Security EliPdpack Or To An Entify ht Will Be Created Address: 756Eastern Parkway,Brooklys,New Ýork11213Ella DJio(s): hereinafter " Social Seáority.Number/Feil called"Purchaser The parties hereby agree atfollown L Eremises. SellershallseR and convey gud Purchaser áhellpurchase the property, togetherwith allbuildingsand improv.ements thereon the'"nomisr#), more Atllydescribedon asepaccatepagemarked anaemed heretoland made a part (cclkady "BehodalcA7 hereof and alsoknown as: StreetAddrew. 114 Jessup Loney Westhampton Bea&, New York Desig=tion· Taf Map Sectioft01900.Block 0007, Lot(s)0120623 Town of Son aspian, Suffolk County Together with Seller%ownership andrights,ifany, toland lyingin the bed of any streetor highway opened or pro ased, adjoining the P1wnise4to1he center line anyright thereof;includfing of to Seller any uttpaidaward by reasonofany takingby ed-a=.me a and/or forattydanage tothe Pretnisesbyreason ofchange efgrade ofany streetorhighway. Seller thalf deliver atno additional. cost to Purchase6at Closing(ashereinafterdermed)3 or thereaftenon demand, any daceants thatPurchaser may feasonably requireforthe conveyance visugh tith and theassignment enicollecti6n of suchaward or issags a kusonairropersydnja saleasu htciucesaü 1unures andwds Premises, unless exatnded specifically below. Sellerrepresentsand warrantsthat at Closingtheywill be paidf owned by Seller,freeand clearof liens all and enountbrances,except gayexistiúgmortgáge tò%vbic . anay be subject3Theyinclude but arenot limitedto,plumbing, heating,lightingand cooking fixtures,chan thecom andkitchen cabinets and counters mantels, doormirrors, switchplatesend dbor hardware, v6 , whidowtreatments, shades,screens, awnings,storm windows, storm doors,window boxes,mail .er,tals, weather yane, flagpole, pumps, shrubbery,fencing, outdoorstatuary, tool shed,dishwasher, wash ne,.olothes dryer,garbage disposalunit,range,oven, built-in microwave oven, refigerator, freezer,aft g equipment and foe ne, walitowall carpetingand bnitt4nsnot ascinded below:(strikhout Excluded tom thissale are furnitute And household fitrnishings and NY$BA's nesidential Realastate Fonns C1/00) -16 O2012 Matoidiv Beader O a rneruborotihe LexisNexisGrdup. FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019 3. Eurease Price.The purchase price s 4 1,2 0,000.00 payable es follows on the signingof this by Purchasets contract, good check payableto the Escrowee(as hereinafterMMadl subjectto (a) the receipt collection, of which is hereby acknowledg4 to be heldinescrow patenent to paragraph6 of this contnic (the $ ,000.00 "Downpayment") balance at Closingin accordance with paragraph7 S 1,125 0 00 (d) %.‰eytenttht cyremdredmyrñent m an th es' n mort tween f renÝand 1n ½ h fhy M Wthw to n mar+mh amenwhAnt t Ne1he n f tn P hn h con he noo nerf and h h 1 mannt th * m nf +n lee n veen dh h ser$ th Wth hnl of c mn nk ne nth n d..o nthht b WAntrowÅ W9eronte that eller M e n Pttr er trHP GWdenm e A en n n mn a trAah^nay ñd martyy.th 11.he.dmwn ht huttnm fneblkr hi the fnrmn;rh.;d nv fnat hthe (a) awa rn a hÿ thp hu ¼W .+a+47 an↠rb 4ýwt Mm‰nhwe ehm11 py at indng h mnrt + v reenrding.fe mrl theattnrnge feeditihe.nmenet n . enr½ prepratinr .. ‰ prAmes money wnf a ed mncto«gembli ston prnvid h+½† onhyear andä.w "r.mitn the lienn he pr& mnrtpge And nny rFanqinnewdñMingtaplacemento nt :ñ~Anneinnq ofthe mnitonga that prn1rirled +hkterest ... ethning ratetharanidhõ11an+ h*ormter then mntyre anmtm and theinfaldehhmem+kaemmAn shWll unt-e granter thw wn wom Wiwpan nmarworew A11 aweea h amnimbsprisipai nwm3 as mpu an+h -e;-; - f the ffmenfphkg mmh ne enmn1 rhtedmart ob eveea ke pid enh hn1 n evicting prahamnhey mortgage k:redur+tnn nFtha wewmartpy nrMMpl thereof‰ mtre to theholder therenfh11 not nTter or n‰t ths re One installmente..ifme of wrkeind whhthecamder nélahal4he hn lar 6 TMwnpayment tatscrow ( ) Seller's attorney("Èscrowne") abd hold theDo p ment inescrovrin a segtégated bank a National Irst Bank of Lon Island AddresMPrankan Ave, Garden Oty 11530 itntil CIøsing or sooneriMmMon of this contractand shall syover orapply the h=pri=mt inaccardãñawith the termsof thisparagraph, BeõtóWee shdu h01a the Dow2tphyrnent inQi) interest-bearingaccountfor thetenefithfthepartiesdf intef6stis held for thebeefit of they4ttles,it smil be patà to the party entined totheDownpaymentrand the party (eceivingthe interestshallpay incoine aily tgxesthereandf interestis not held for the benefitofthe partiesJhe Downpayment shahplaced in an IOXAaccouút or As othBrWi$50permitted otrequiredby lawJhotooial securityor1federalIdentl1ication numbefs oftheparties she be $2rnishedto Escrowee upon requmAt Closing, the Dovapayment:shall be paidby Escrowee tor Seller. Iffbranyreason Closing does notoccur and eitherpartygivesNodce (as definedin p-dagraph 25)to Escrowee demandin¼ päyment pf the DownpaymentJacrowee shallgive promptNotice to theotherparty ofsuch deme.d. IfBscrowee does netreceiveNotice øf NYSBes koddentWReátEstateForma(11/D0) O2012 MeftlièwBender & Co amember b thef.exisNexis 0tepp; ,. ..¿ a----a-a r-..w . a....as....wng-n.. a u4sam agnaiii.. ni . qu-wiice neur -e r..v.a a...6--n.-,..-u.a *4a+ s.i.s-simu.• wre -m1i-- e in..a .e,p,p.e,... a .ine-uf ....... .......... ....... . ..................... .............. . . ....................... .......... ....................... ..... .... ...... .......... ........ ......_... _._......__..____.___..__... ... ................. ....._........__.... . ......- ...... .... . . .............. ....... FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019 from objection such otherparty to theprbposedpayment within 10 busines&days anerthe giving ofàuch Notice, Edorowee ikhetehy authorizedand directedto make such payinent.IfEscrowee does receivesuch Notice of objectfon withh such 10 datperiod or iffor any otherreason Bscrowne ingood fidthshallelectnotto make such paylgentEscrowee shallcontinuefo hold suchamount until otherwise directedby Woticef¾qa the parties to thiscongact a futál, nonappealablejudgment, onler of a courtGlowever, or tleeree Escrowee shallhave therightat anytlineto depositthe Downpayment and the interestfhereanwiththe clerkofa oeurtin to county insvhleh the Premisesare locatedand shallgiveNotice of such deposittoSener and Purchaser. Upon such depositer other disbursement lu accordance.withthe terms of this paragraph, Escrowee shallbe relievedand discharged ofan furtherobligations hereunder, and responsibilities (b) The patica acknowledge that,Escrowee is acting as a dehnidel solely t their requestand for their wonvenience and thatEsorowee shallnot be liable¾ither pmty forany actor ornission on ts part unless taken or suffered in bad faih or in willful disregard ofthiscontractor involvinggrossnegligence on the partofBscróWee. Sellerand Purchaser jointlyand (with seterally rightof contribution)agreeto defend(by Ameyeselected by Escrowee)3adc=iff and bbld Escrowee harmless f(omand against all claimsand expensesOncluding reasonabl'e attomeW feesyincorredin connectionwith theperformance ofEscrowee's edsty dutieshereunder, exceptwith respectto actionsoromissions taken or suffered byEscrowee in badfaithor inwillfuldisregardof tis contractor involvinggross negligenceon theyatt ofEsorowee. (c) Escrowee megy actor refrainfrom actingin respectofgny matter refi:rred tohereink fulfrelianceupoanid wilk the advice of counselwhich alaybe selectedbyR (inclñdingg$inember ofits firm)ándahall be fullyprotectedinso abdag or from refi'aining actingupon theedvice ef suchcounsel (d) Escrowee acknowledges reoølptof the Downpayment by check subjecttocollectionand Escrowee's agreeinentto the provisionsofthis paragraph by signingA the placeindicatedon the signdtm2page of thiscontract. fe) Escrowee or any member ofitsfirm shal1he permittedta not.asoatmseliksenet in guy disputeas to the disbursement of ne Downpayment orany otherdispute between thepartieswhether ornotEscrowee isinpossession ofthe Downpaÿment and continuesto actas Escrawee. (1) The party whose attorneyis Escrowse shallb.e liable forloss ofthe Downpayment 7. Acceptable Funds, All moneypayable ander thiscontract,unlessotherwise shall specified, be paid by: (a) Cash, but notover $1,000.00; (b) Good check certified of Purchaserdrawn on arofficialchectissued by anybmkigatings banka tedstcoln atty or payings and loan associationhaving a banking oftice in theState of New Tork, unbadorsed and payable tothe orderof or m 8dtgr Seller, may o&erwise directupon reasonable priornotice(by felephone or other wise) f o Purchaser; (c) As to money oker than inepurchase pricepayable Sellerat Closing,uncerdfied oneck ofPurchaser n to the amountof S1,00040 ; and ) As otherwise agreed to in writing by SellerorSeller'sattorney. .m h Ñ( (f Onmmitment T1n ten th mhmenHI-Am an Tn9fifnt rmn1 T entl a h . 491E4t-Sh9Mer-te BMt04 6 enwamary enmvn (+h en h ertent aP-h an t nn rW nn prt nn the eat n imragymmt ofmy nnfetan r1 nriAt n matorM eduers Acm in Pnech neig1 ~Ehnr wny Ather inn . -w'f&: -.-h~¬reents theris1c thaf ench ennÆfinne trf†nnt hr n- h+•we ennelitined mn thenot m 1 4%er-mana nas esp 4 byhe ase Banned h -theseof . NYSBA'sResidentidRealEstatefone(1t/00) 4 42012hlatthew Bender &. co.,a raember oLexis Oro . FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019 suoMes@ahas enae schase40 andaf thh gkin Nnti a toReUar w h n h ewdaynner & Onmmitmet k Pnwhwmay mwrashy p Notice4ndud mded ta. Archeer .ed ever f W tret Enrth iri mormh mm rmw éé ne end inC -+½ weM+ men A h hein 4nn ahf‰r Arrmn T d nPA kn9 + Unt ãhesena) er-ste+fer . knq¼ee in hwVrielf %te+ thm+ w n r e +ertw wmantin Aff4le MnnFLAm1½w Yw am1 armin&ÔmataM.fnmotw Peralitted Weeptions4The Premises are soldand thallbe conveyed subjee to (a) Zoning atidsahdMeloñ Is we edregulations and kndmark, histone or Whnhdalgastica, provied thatthey are not vichted buildings by the.existing and improvements erectedon the propetyor theirusq; (b) Consentafor the erecticeof anyshvctures on, underor above any w streets which the Premises abat; (e) Emoroachments of stpops, areas,cellarsteps;trim and comicessif any,ty paanystreet or highway; (d) Real estétetagèsthatare a linil, btitare netyetdue andys;yablepud (e) Th6otherittatters,ifany, includinga surveyaceptionJet forthka Ride aj‡ached 10. GOvermadal Violations and Orders. (a)Sellershan comply With allnotesornotices ofviolationsoflaw :äunicipal ordinaé¼orders or nqnirements noted of issuedas of the datehereofbyany govemachte depattratathaving adhorhy este lands,housing; buildiage,firshealth,environmental and laborconditions rdicrimgthe Premhess thePremises shellbe conveyed fl·ee ofthemat Closing/Selletshaufurnish Purchaser With any authorizations necessaty to make the searches that oulddhdose thee inu¾& 11 Sellers Representat ous. (a).Seller reprsents and warrants to Purchaserthat (i) ThaPrentisës abuWr have a rightofaccess to spunic toad (ii) Selleris thesoleowner of the Premisesand hás the power fullright, and anthority1n and sell3 convey transferthe samein accórdánce with theterms of thiscontract; (ifÇ Selleris pota "foreigtiperson," as thattemï is definedfarpurposes ethoPoreigninvestment in Tax RealPrbpedy Act, hiteraw Reventre Code ("IRC") Sectiott1445,As antended, and theregulationspremegee¾±hered (collectivelý "FIRPTA"); (iV) The Prentise&arenotaffectedbyany exemptiona or alatement¢eftaxessud (v) sellerhanteenknowntynoothernameforthpasttenyears,except Rd8T350tt6R06tts(j1/00) SSAÉS iiisidBRti@l -4- t11eIätia 020DhitiMI1éWBbnder4CO, ataindaro Ordu FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019 M . hh Sellercovenants and warrantsthatallofthe representationsand Warrantiesset forâ1inthiscontractshallbetra6 and (b) correctat Closing; Except as otherwise set forthin this none contract, of Selletscovenants, representationsiwarräntles or other (c) expressly obligatianscontained contract in this shallsurvive Closing 12. CoaditiGA of Property. Purchaser acknowledges and regeme thatPorchaser aware is fully ofthephysical enditibn and stateofrepair of1hekmi= and of allotherpropertyindluded inthissalerbased on Purchasets own kspectim aidinvestigation thereoitand thatPurchaser Is entering intothis contract upon based solely such inspectionand investigation and ndt tpen any st4emeds or represtahs wsittenor orabas tothephysical condhié¼ stateofrepair,use3cost ofoperationof information,data, othermatter relatedtoth6Premises atthe otherpropertyincluded inthe salecgiven ormade by Selleror its and representatives, any is" stateof repairsubjectioreasonable tearand ¼atural shallaccept thesame "as in their present canditionand use, wear, detederaticñ between thedate hereofand the dateof closing(exceptas otherwisesetforthin paragraph 16(e)) withoutany reductionin thepurchass priceor claim ofany idnd forany change insuch condition by reasonthereofsubsequent†o the dateof this contract.Purchaserand itranthorized shallhave representatives the right; at reasonabletimes and upon reasonablejnotice(by telephoneor otherwise)to Sener,toinspectthe premises beforeClosing. 11 Insurable Title.Selletshallgiveand Purchaser shallacceptsuch titleas any reputable title hsurance or alistract compaiy iteensedto do bùsinessin thestateof New York shallbe willingtoappròve and insure inaccordahoe with its sandardfong oft1tlepolicyapproved by the New toric State insurance Deparknent, subjectorily proWded to theanatters forin thiscontact. R Closing,Deed ned Title. (a) "Closing" means the settlement chligations of the of Sener and Purchaserto eack otherunderthis contract,includkg the payroentofthe purchase price and to seller, the deliverytoPurchaser of a argain and salewith covcñant against grantore acts deed in proper short statutory fòrm forrecord3duly executedand Racwledged, so as to convey to Purchaserfee sirnpletitle to the Tremisetfreeof allencumbrances, exceptas otherwiseherein stated Jhe deed shallcontak a covenantby Selleras requiredby aubd.5 of Section 13 of the LieuLawL (b) IfSelleris a corporatiourit shalldelivertoPurchaser atthe timeof Closing(I)a resoibtionof its Boardof Directors nuthorizingthe saleand deliveryof thedee( and a (ii) cartiacetebythe SecretaryorAssistant Secretaryofthicorporation certifying such resohitióúand settingforthTacts showingthatthe isin transfer confonnity withthe requirements ofSection 9 of the Business Corporatién Law. The deed in huchcase shall contain sufficient a recital toestablishcompliance with thatSectica 15. Closing Date näd PIke. Closing shal1takeplace at the office Of Wilkie & Wilkie,33Ri1tch Avenue, Hemphtead, New york 11550 at lik00 Alvf elockon or about , W19 òr,upon reasonablenotice (by telephoneér otherwise)by Puròhaser,at theofficeof 15 Conditions to Cloafag. Thiscontgct and Purchaser's obligation to purchase thePremises are alsosubjecttoand conditioned upon the fulfdimentof thefollowing cenditionsprecedent; (a) The accuracy 5of the date ofClosing, oftherep‡6sentationsand warrantiesof Sellermade in thiscontiact. (b) The deliveryby BellertoPurchaserof a validaüd subdstingCertificateofOccuhneybr otherrequiredt stificate of wmyllauct or evidence thatnone was required,covering thehuilding(s)nad a11óf the ¼üpithâäts bftier leentedon the property authorizing theiruse as a V#cant hand Subject to Recorded Essement family dwelling at thedateof Clostng. (c) The deliverybySellerto Pùrchaserof a certificate statingthatSelleris nota foreigaperson, which certi$cate be in shall the form theA reqo.ired by FIRPTAcor a withholding certificateota the113 IfSellerfailsiodeliverthe aforesaidcertificate or)f Purchaser is notentitledunderFIRPTA torely on such Purchaser certificate, shan deductand withhold from the p‡öh price sum equalto 10% thereof(or any lesseramóunt permitted by law) and shallatClosing remitthe withheld atonent iththe required forkfsto theInternalRevenue36rvice d:¼TeodelianaS/ SeefueseaW4esweetulkim vacast-ead4esefèasew enessadegeee meeken 4eented ede. agelasale4eer-de e (g) The delivery byihe partiesofany other reqúiced ffidavfts as a conditionof recordingthe deed, 7, Deed Transfer and ecording Tazes. At Closing,certified or bank official checks páÿableto the orderofthe gpp ate NY5BA$9 Reid tist RéWEstateFamis (11/00) 4 ©2012Eatthew Balder & Co., A meWrfthelwisl p FILED: SUFFOLK COUNTY CLERK 07/19/2019 02:03 PM INDEX NO. 619585/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/19/2019 or onicerin the.amount ofany applicabletransferand/orrecording taxpayable byreason oftheEelivery or State,City County ofthe deed ormortgagp, ifany, shallbe deliveredbythe partyrequiredby law orbythis contracttopsy duch transfer recording and/or recordingtag togetherwith any requiredtaxretums dulyexecuted and sworA topand such party shancause ány such checks and returneto be deliveredto theappropriateofEeerpromptly ater Cl4sing. the obligationto payany additionaltai or deficiency and any interest oryenalties thersanshal1survive Closing.. 18. Apportionments and Other Adjustments; Water Meter andlastanment A=ame± (a) To theextentap the licable, following shallbe spportioried as ofmidnight ofthe day beforethe day ofClosing taxes,waier charges and tewer reaton the basisof the period liacal forwhich assessed;($4elc(iii)lnesrest on the (1) mortgage; (hry preinituds on existingtransferableinsurancepallelesand tenewals ofthose expiringpriortoClosing; (v) existing vault chargesp(vi)rentsas and when collecte4 ifClosing shalloccur beforea new taxrate is Exed,theapportiomnent of taxesshallbe poA the basi of the taxf ate for (b) the preceding period fiscal applied ésesse to the latest valuation. immediately thean -chaus***AS anWf-aesha4barra*leaadde eleasemehanetwa (d) Ifat thedate6f Closing the premisesare affected by an =e=ent which is or maybecome payáblb b at nual installmentsrand thefirst installmentis thena lien or has been paid;then purposes f br the of this cogtractallthe aid instalhnmatsshaR be sonsidered ane 8nd shan be paidby $ellerat or prior toClosing Anyerrats. or omissions incomputing apporntonments orotheradjustments it Closing shaRbe corrected ethin a (e) reasonabletime following Closing. This subparagraph shallserviveClostag IA Allowange fer Unliaid Taxes, etc Sener has theoptionfa creditPurchaser as an Adjustmentto the purchase ricewith the smount ef anymnpaid th¼es, assessments,watercharges andmverrents, togetherwhh any arúl toterest pënaltiesthpreonto a date not 1mthen fivebusinessdaysafter Closing,provided that hills official thereforcotaputedto saiddate are pnadued at Closing, 20, Use bf Purchase Price to Remove Enoumbrañccadf ar Closingtherean otherliensor encM*a es that$ lleris obligated to payor discharge,Scher may use any partionof the sh balance of the purchase price to payor dischargethem, royided5elle shallii=n!tmeously deliver toPurchaser at Closinginstruments in recodablefonn sad sufficienttosatisfymeh liehsor encumbrances of record,togetherwiththe dostofrecording or fillagsaidinstrummits.As an•J†an=#ve Seller may¼teposit suHiolent moneys with thetitleinsurancecompany employed by Purchaser acceptableto and requiredby it toassuretheir diWharge, but onlyif the dtleinsurance company willinsurehtrchasefs titleileptof the matternor insure againsttheirenforcement out ofthePremises and willinsurePurchasers Institutionalledderelearof suchmattersSpon runnininflepriotnotice(by telephoneor otherwise), Porchaser shallprovide separatecertified dr oniohl bank checksms tequestedto assistinclearingup these mattats,| 21 Ttle hamination; Seller'sJnabilityto Convey pine s ofLisbility.(a) Purchasershallorderan exâmination of titio in respectof the Prëmisesfrom a title company Ilcensedor authorisedtoissue title insuranceby the New York StateInsurance Department or enyagent forsuch title cornpany promptly af ter the execution ofthis contractor ifthfecontractia subject to the mortgage contingentiyset fo1thinparagraph A aftera mortgage cornmitment has been acceptedbyPacchaser. Purcheser shallcause a bopy of thetitle reportand ef anyadditionst%ereto to be delivered to the for attorney(s) Sellerpromptly after receiptthereof at the (b)(i)1f date Seller of Closing is unableto transfer title to Purchaserin accordance withthiscontract,or Furchaserhas other validgrounds forrefusing to dose,whether byteasgo of liens, markances or otherobjectionsto title orotlierwise(herein collectivelycalled"Defects"),othe thanthose subjectto whichParobaser is obligatedtoaccept title hereunder or whichPurchaser may have waived f ban those at14 other which Sellerhas hereinexpressly agreedto remove, remedy or dischargeand ifPurchgser shallbe unwilling towolve the same and toclose without title abatement of the purchase then, price, exceptsahereinafterset forth, Sener shallhave the right at SeUefs either sole election, totake such actionas Bellermay deem advisableto renovp,remedy, discharge orcomply with such Defectsor to. cancel this contract; (ii)ifSeller electsto takeaction tosemove,remedy or comply with such $91hcts,Sellershallbe entithalfrorgtime toame; upon3rptice to Purchaser,tos4journ the datef br Closing hereunderfor a period or periodsnotexegeding 60 days inther aggregate(butnot extendingbeyond thedate upon Which Purchaser¼ mortgage commitment ifanycshall expire),and thedate forClosing shallhe adjournedto a datespecifiedby Sellernotbeyo¼d such pedod. If forway reason etratsoever,Sellershallnot have succeeded in removing,remedybig or complying withench Defectd at the expiration of such adjdurmnent(s),and iffarchaser ähallstill be unwilling to waivethesame and toilosetitlewithoutabatenientof the purchase price then eitherpartymay cancelthiscontractby Nodce to theothergiven within 10 daysaftersuch adibutifed