Motion to Dismiss in Exrp 14 Holdings Llc v. Ls-14 Ave Llc| Trellis.Law

On August 01, 2022 a Motion,Ex Parte was filed involving a dispute between Exrp 14 Holdings Llc, and Ls-14 Ave Llc, for Commercial - Business Entity - Commercial Division in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 09/30/2022 06:53 PM INDEX NO. 652698/2022
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/30/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

EXRP 14 HOLDINGS LLC, Index No.: 652698/2022

Plaintiff, Hon. Melissa A. Crane

- against - Mot. Seq. No. 003

LS-14 AVE LLC, ORAL ARGUMENT
REQUESTED
Defendant.

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO
DISMISS OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .....................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................3

A. The Parties Execute the PSA and Amend the PSA..................................................3

B. Defendant Sought to Close Under the PSA .............................................................4

ARGUMENT ...................................................................................................................................5

I. THE COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF
CONTRACT ........................................................................................................................6

II. THE COMPLAINT FAILS TO PLEAD AN “ALTERNATIVE” CLAIM FOR
SPECIFIC PERFORMANCE ..............................................................................................8

III. THE COMPLAINT FAILS TO STATE A CLAIM FOR DECLARATORY
RELIEF ................................................................................................................................9

IV. THE COMPLAINT FAILS TO STATE A CLAIM FOR EQUITABLE
ESTOPPEL AND PROMISSORY ESTOPPEL................................................................10

V. THE COMPLAINT FAILS TO STATE A CLAIM FOR UNJUST
ENRICHMENT .................................................................................................................11

VI. THE COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF THE
IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING ..............................12

VII. THE COMPLAINT FAILS TO STATE A CLAIM FOR TORTIOUS
INTERFERENCE WITH CONTRACT ............................................................................13

VIII. THE COMPLAINT FAILS TO STATE A CLAIM FOR UNFAIR
COMPETITION ................................................................................................................15

IX. THE COMPLAINT FAILS TO STATE A CLAIM FOR CONVERSION ......................16

X. IN THE EVENT THE COMPLAINT IS NOT DISMISSED, PLAINTIFF
SHOULD BE REQUIRED TO PRESENT A MORE DEFINITE STATEMENT
BECAUSE DEFENDANT IS UNABLE TO FRAME A RESPONSE TO THE
COMPLAINT IN ITS PRESENT FORM .........................................................................17

CONCLUSION ..............................................................................................................................18

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TABLE OF AUTHORITIES

Page(s)

Cases

20-35 86th St. Realty, LLC v. Tower Ins. Co. of New York,
106 A.D.3d 478 (1st Dep’t 2013) ............................................................................................17

Ahead Realty LLC v. India House, Inc.,
92 A.D.3d 424 (1st Dep’t 2012) ..............................................................................................15

AIX Partners I, LLC v. AIX Energy, Inc.,
No. 651401/2012, 2013 WL 4533584 (Sup. Ct. N.Y. Cty. Aug. 22, 2013) ..............................9

Alizio v. Feldman,
82 A.D.3d 804 (2d Dep’t 2011) .................................................................................................9

Amcan Holdings, Inc. v. Canadian Imperial Bank of Com.,
70 A.D.3d 423 (1st Dep’t 2010) ..............................................................................................12

AQ Asset Mgt. LLC v. Levine,
119 A.D.3d 457 (1st Dep’t 2014) ............................................................................................11

Atkinson v. Mobil Oil Corp.,
205 A.D.2d 719,720 (2d Dep’t 1994) ........................................................................................6

Biondi v. Beekman Hill House Apartment Corp.,
257 A.D.2d 76 (1st Dep’t 1999), aff’d, 94 N.Y.2d 659 (2000) .................................................5

Brook v. Peconic Bay Med. Ctr.,
152 A.D.3d 436 (1st Dep’t 2017) ............................................................................................15

Brown v. Kristal Auto Mall Corp.,
149 A.D.3d 1025 (2d Dep’t 2017) ...........................................................................................16

Celle v Barclays Bank, P.L.C.,
48 A.D.3d 301 (1st Dep’t 2008) ..............................................................................................10

Clark v. Marine Midland Bank, Inc.,
67 A.D.2d 846 (1st Dep’t 1979) ..............................................................................................17

Clark-Fitzpatrick, Inc. v. Long Island R.R. Co.,
70 N.Y.2d 382 (1987) ..............................................................................................................10

Clifden Futures, LLC v. Man Fin., Inc.,
20 Misc.3d 638 (Sup. Ct. N.Y. Cty. 2008) ............................................................................6, 7

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CWCapital Cobalt VR Ltd. v. CWCapital Inv. LLC,
195 A.D.3d 12 (1st Dep’t 2021) ..............................................................................................11

Dairo v. Rockawav Blvd. Prop. LLC,
44 A.D.3d 602 (2d Dep’t 2007) .................................................................................................8

DDR Constr. Servs. v. Siemens Indus.,
770 F. Supp. 2d 627 (S.D.N.Y. 2011)......................................................................................16

DiMauro v. Metro. Suburban Bus Auth.,
105 A.D.2d 236 (2d Dep’t 1984) ...............................................................................................5

Dobroshi v. Bank of Am., N.A.,
65 A.D.3d 882 (1st Dep’t 2009) ..............................................................................................16

Fesseha v. TD Waterhouse Inv. Servs.,
305 A.D.2d 268 (1st Dep’t 2003) ............................................................................................13

Foley v. D’Agostino,
21 A.D.2d 60 (1st Dep’t 1964) ..................................................................................................5

Fridman v. Kucher,
34 A.D.3d 726 (2d Dep’t 2006) .............................................................................................7, 8

Gindi v. Intertrade Internationale Ltd,
50 A.D.3d 575 (1st Dep’t 2008) ................................................................................................7

Goldstein v. CIBC World Mkts. Corp.,
6 A.D.3d 295 (1st Dep’t 2004) ................................................................................................10

Hanson v. Hanson,
203 Misc. 396 (1953) ...............................................................................................................17

ITC Ltd. v. Punchgini, Inc.,
9 N.Y.3d 467 (2007) ................................................................................................................14

Ithilien Realty Corp. v. 180 Ludlow Dev. LLC,
140 A.D.3d 621 (1st Dep’t 2016) ..........................................................................................8, 9

Kopel v. Bandwidth Tech. Corp.,
56 A.D.3d 320 (1st Dep’t 2008) ..............................................................................................16

Krouner v. Koplovitz,
175 A.D.2d 531 (3d Dep’t 1991) ...............................................................................................6

Leon v. Martinez,
84 N.Y.2d 83 (1994) ..................................................................................................................4

Linkable Networks, Inc. v. Mastercard Inc.,
184 A.D.3d 418 (1st Dep’t 2020) ............................................................................................15

iii

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Martin v. Madison County,
88 A.D.2d 162 (3d Dep’t 1982) .................................................................................................5

MatlinPatterson ATA Holdings LLC v. Fed. Express Corp.,
87 A.D.3d 836 (1st Dep’t 2011) ..............................................................................................10

Mirage Rest., Inc. v. Majestic Chevrolet, Inc.,
75 A.D.2d 808 (2d Dep’t 1980) ...............................................................................................17

Morgenthow & Latham v. Bank of New York Co., Inc.,
305 A.D.2d 74 (1st Dep’t 2003) ................................................................................................5

MTI/The Image Grp., Inc. v. Fox Studios E., Inc.,
262 A.D.2d 20 (1st Dep’t 1999) ..............................................................................................13

Nat’l Union Fire Ins. Co. of Pittsburgh v. Xerox Corp.,
25 A.D.3d 309 (1st Dep’t 2006) ..............................................................................................13

New York City Educ. Const. Fund v. Verizon New York Inc.,
114 A.D.3d 529 (1st Dep’t 2014) ..............................................................................................7

NYU Hosp. Ctr. v. Huang,
No. 102832-2011, 2012 WL 251551 (Sup. Ct. N.Y. Cty. Jan. 18, 2012)................................10

Pesa v. Yoma Dev. Grp.,
18 N.Y.3d 527 (2012) ................................................................................................................8

Rather v. CBS Corp.,
68 A.D.3d 49 (1st Dep’t 2009) ................................................................................................14

Rossetti v. Ambulatory Surgery Ctr. of Brooklyn, LLC,
125 A.D.3d 548 (1st Dep’t 2015) ............................................................................................12

Ruha v. Guior,
277 A.D.2d 116 (1st Dep’t 2000) ............................................................................................14

Scarola Ellis LLP v. Padeh,
116 A.D.3d 609 (1st Dep’t 2014) ............................................................................................11

Schutty v. Speiser Krause P.C.,
86 A.D.3d 484 (1st Dep’t 2011) ..............................................................................................13

Shields v. Sch. of Law of Hofstra Univ.,
77 A.D.2d 867 (2d Dep’t 1980) .................................................................................................6

Vanlex Stores, Inc. v. BFP 300 Madison II, LLC,
66 A.D.3d 580 (1st Dep’t 2009) ..............................................................................................12

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Other Authorities

5 Carmody-Wait 2d New York Practice § 29:247 .........................................................................13

CPLR § 3024..............................................................................................................................1, 17

CPLR § 3013................................................................................................................................5, 6

CPLR § 3211............................................................................................................................1, 4, 5

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Defendant LS-14 Ave LLC (“Defendant” or “Landsea”) respectfully submits this

memorandum of law in support of its motion to dismiss the complaint (“Complaint”) filed by

plaintiff EXRP 14 Holdings LLC (“Plaintiff” or “Extell”) for failure to state a cause of action

pursuant to Civil Practice Law and Rules (“CPLR”) § 3211(a)(7) or, in the alternative, pursuant to

CPLR § 3024(a) for a more definite statement.1

PRELIMINARY STATEMENT

By this action, Plaintiff seeks recovery of the multi-million dollar non-refundable deposit

it funded in connection with its agreement to purchase an 11,500 square-foot retail unit (the “Retail

Unit”) at the mixed-use condominium under development at the intersection of 14th Street and 6th

Avenue known as the Förena Condominium. This demand is both incredible given the facts as

alleged, and meritless as a matter of law.

Having already renegotiated the deal (including the price), Plaintiff then refused to close

on the purchase of the Retail Unit absent a second price reduction, threatening to and then filing

this lawsuit to hold the deposit hostage in escrow until Defendant caved to its extortionate

demands. As shown below, this lawsuit is wholly without merit. Plaintiff alleges a multitude of

bare-bones and spurious claims in an improper attempt to seek the aid of this Court to avoid the

consequences of its own contractual default. Taking every allegation of the Complaint as true, the

claims asserted by Plaintiff fail as a matter of well-settled law.

First, Plaintiff’s breach of contract claim -- which alleges that Defendant did not complete

construction of the Retail Unit in compliance with the governing plans -- contains no allegations

whatsoever establishing how or in what manner Defendant allegedly strayed from those plans.

1
Submitted herewith is the Affirmation of Jennifer McDougall (“McDougall Aff.”). All
citations to the Complaint shall be referenced as (“Compl.”). Any terms not defined herein shall
have the meaning as set forth in the Complaint.

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Such vague and conclusory allegations, which Defendant is unable to comprehend let alone

counter, are insufficient to state a claim. Plaintiff’s declaratory judgment claim (claim three),

based on identical allegations and seeking identical relief is duplicative and unnecessary and

should be dismissed as well.

Second, Plaintiff’s request for specific performance “in the alternative” to itsbreach of

contract claim is wholly inconsistent with its contract claim and unavailable where, as here,

Plaintiff has not established that itwas ready, willing, and able to close on the alleged outside

closing date of May 27, 2022, the time of the essence closing date of July 6, 2022, or any

subsequent date. Alternatively, if Plaintiff’s breach of contract, declaratory judgment, and specific

performance claims are sustained, Plaintiff should amend its Complaint to provide a more definite

statement. In its present form, Defendant is unable to respond to these claims as the Complaint

does not allege any of the purported ways that the Retail Unit differs from the construction plans

or how exactly the Architect’s Certificate is purportedly insufficient.

Third, Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing is

based on the same allegations as the breach of contract claim and is subject to dismissal as

duplicative under long-settled New York law. Plaintiff’s equitable estoppel and unjust enrichment

claims are similarly identical to the breach of contract claim and should also be dismissed.

Fourth, Plaintiff’s throw-in claim for tortious interference is meritless. The sole

enumerated act (asking for the contact information of a potential tenant) cannot give rise to a

tortious interference claim (even if, contrary to fact, there was anything wrong with the alleged

conduct) because it is black-letter law that a defendant is privileged to interfere with its own

economic interests.

Finally, Plaintiff’s claims for unfair competition and conversion miss the mark. As to

unfair competition, Plaintiff makes no allegations that Plaintiff and Defendant were competing

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with one another, much less that Defendant acted with any bad-faith. As to conversion, Plaintiff

never had any possessory right to the Retail Unit given that it refused to close. As neither claim

is applicable to the facts as alleged here, it is clear that Plaintiff alleged these claims not to vindicate

legitimate legal rights but rather to bludgeon Defendant into granting monetary concessions to

which Plaintiff is simply not entitled and both should be rejected by the Court.

FACTUAL BACKGROUND2

A. The Parties Execute the PSA and Amend the PSA

On September 12, 2018 Plaintiff and Defendant entered into the PSA. Compl. ¶ 11.

Pursuant to the PSA, Defendant agreed to construct and sell to Plaintiff the Retail Unit at the

mixed-use condominium under development at the intersection of 14th Street and 6th Avenue

known as the Förena Condominium. Id. Upon executing the PSA, Plaintiff submitted a multi-

million dollar payment as required under the PSA. Compl. ¶ 12. The PSA contemplated a March

12, 2022 closing date. Compl. ¶ 14.

At Plaintiff’s request, to accommodate changes to the construction of the Retail Unit

requested by Plaintiff’s prospective tenant, on January 11, 2022, the parties amended the PSA to

adjourn the closing date from March 12 to April 30, 2022. Compl. ¶ 16. Plaintiff also demanded

and received a multi-million dollar reduction in the purchase price of the Retail Unit. Under

pressure, and with construction already underway, Defendant acceded to this demand. Thereafter,

due to additional construction changes demanded by Plaintiff, the parties repeatedly amended the

PSA to extend the closing date to accommodate construction alterations. The parties again entered

into amendments on April 29, 2022, and May 10, 16, and 20, 2022, ultimately extending the

closing date to May 27, 2022. See Compl. ¶¶ 17-19.

2
The facts set forth herein are based on the allegations of the Complaint, which are
accepted as true only for purposes of this motion.

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B. Defendant Sought to Close Under the PSA

Prior to May 27, 2022 the parties attempted to negotiate a sixth amendment to the PSA to

again extend the closing date, though the parties could not come to a final agreement. Compl.

¶ 23. After the parties agreed to terms but Plaintiff refused to execute the proposed sixth

amendment, Defendant then moved forward to ready the Retail Unit for closing.

To that end, on June 14, 2022 Defendant received an architect’s certification that the Retail

Unit “has been completed to the best of our knowledge in accordance with the contract

documents.” Dkt. No. 38. On June 28, 2022 Defendant served Plaintiff with a closing notice,

representing that Defendant “has satisfied all conditions to Closing” and setting a closing for the

Retail Unit for July 6, 2022. Compl. ¶ 24. Plaintiff responded on June 30, 2022 rejecting

Defendant’s notice. Compl. ¶ 25. Defendant served yet another closing notice on July 1, 2022,

including the architect certification, reiterating the July 6 closing date. Compl. ¶ 26. On July 6,

2022, Defendant attempted to close with Plaintiff, but was denied access to the offices of Plaintiff’s

attorney (Herrick Feinstein, LLP) to deliver the required seller closing deliverables and

consummate the closing. See McDougall Aff. Ex. 2. After Plaintiff refused to close and deliver

any of its purchaser deliverables, Defendant sent another notice to Plaintiff explaining that Plaintiff

was in default of its closing obligations under the PSA. Dkt. No. 40. Rather than seek another

day to close, Plaintiff initiated this action, seeking damages for breach of contract or “in the

alternative” specific performance. Once this action was filed, counsel for Defendant repeatedly

requested again that Plaintiff close on the transaction contemplated by the PSA and re-confirmed

that Defendant was ready, willing, and able to close. Plaintiff (through counsel) again refused to

close. See Dkt. No. 51.

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ARGUMENT

A complaint must be dismissed where it “fails to state a cause of action.” CPLR

§ 3211(a)(7). In evaluating motions to dismiss pursuant to CPLR 3211, courts consider allegations

in the complaint, exhibits attached to the complaint, matters of public record, and documents that

form the basis of a claim. See Leon v. Martinez, 84 N.Y.2d 83, 88 (1994) (dismissal is warranted

“if the documentary evidence submitted conclusively establishes a defense to the asserted claims

as a matter of law”). Where documentary evidence contradicts the legal conclusions and factual

allegations in the complaint, as it does here, the standard of review is “whether the proponent of

the [complaint] has a cause of action, not whether he has stated one.” Morgenthow & Latham v.

Bank of New York Co., Inc., 305 A.D.2d 74, 78 (1st Dep’t 2003) (citation omitted).

While the allegations of a complaint are generally deemed to be true for the purposes of a

motion to dismiss, “[a]llegations consisting of bare legal conclusions . . . are not presumed to be

true and not accorded every favorable inference.” Biondi v. Beekman Hill House Apartment Corp.,

257 A.D.2d 76, 81 (1st Dep’t 1999), aff’d, 94 N.Y.2d 659 (2000). Although, in general, on a CPLR

§ 3211 motion to dismiss the pleading should be construed liberally, allegations in a complaint

must also comply with the requirements of CPLR § 3013. Consequently, in order to adequately

plead a cause of action the statements in a pleading must (1) be sufficiently particular to give the

court and parties notice of the transactions or occurrences intended to be proved, and (2) set forth

the material elements of each cause of action. See Foley v. D’Agostino, 21 A.D.2d 60, 63 (1st

Dep’t 1964); see also Martin v. Madison County, 88 A.D.2d 162, 165 (3d Dep’t 1982) (unless

facts pleaded state a cause of action, complaint must be dismissed); DiMauro v. Metro. Suburban

Bus Auth., 105 A.D.2d 236, 238 (2d Dep’t 1984) (essential facts required to give notice of claim

must generally appear on face of pleading and conclusory allegations will not suffice).

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For the reasons described in detail below, based on the foregoing well-established

standards, the Complaint should be dismissed in its entirety.

I. THE COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF
CONTRACT

The Complaint fails to state a claim for breach of contract. To properly plead a cause of

action for breach of contract, the Complaint “must be sufficiently particular to give the court and

the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended

to be proved as well as the material elements of each cause of action or defense.” Clifden Futures,

LLC v. Man Fin., Inc., 20 Misc.3d 638, 641 (Sup. Ct. N.Y. Cty. 2008); see also CPLR § 3013.3

Allegations that are vague and conclusory are insufficient to state a claim. See Clifden Futures,

20 Misc.3d at 641 (citing Gordon v. Dino De Laurentiis Corp., 141 A.D.2d 435, 436 (1st Dep’t

1988)).

Here, the allegations of the Complaint are not sufficient to withstand a motion to dismiss

given that the Complaint contains no allegations whatsoever establishing how or in what manner

Defendant allegedly failed to fulfill its obligations under the PSA. Indeed, while Plaintiff alleges

that Defendant breached the PSA by “failing to complete the Retail Unit in accordance with the

PSA’s plans and specifications or to obtain a proper Architect’s certificate,” Compl. ¶ 38, the

Complaint does not allege how the Retail Unit differs from the required plans or specifications or

how the Architect’s certificate which states that the Retail Unit “has been completed” “in

accordance with the contract documents” is improper. Plaintiff’s wholly conclusory allegations

3
Although a complaint generally is to be “construed liberally” on a motion to dismiss, a
complaint that sets forth a claim for breach of contract must allege the provisions of the contract
upon which the claim is based. See Shields v. Sch. of Law of Hofstra Univ., 77 A.D.2d 867, 868,(2d
Dep’t 1980). Accordingly, if a complaint does not point to the provision of the contract that states,
or from which it may be inferred, that defendants had the express or implied obligation upon which
the breach of contract claim is based, the complaint should be dismissed. Id. at 869.

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cannot withstand this motion. Indeed, New York courts routinely dismiss cases where, like here,

the complaint did nothing more than aver generally that defendant breached the contract at issue.

See, e.g., Atkinson v. Mobil Oil Corp., 205 A.D.2d 719,720 (2d Dep’t 1994) (deeming pleading of

a breach of contract claim insufficient where the complaint and bill of particulars did not properly

alert defendant to the basis for the claim); Krouner v. Koplovitz, 175 A.D.2d 531, 533 (3d Dep’t

1991) (finding failure to state a breach of contract action where plaintiff alleged in “general and

conclusory terms” that defendants breached contractual duties without setting out the terms of the

agreement); Clifden Futures, 20 Misc.3d at 643 (granting motion to dismiss where plaintiff pled

“generally” that defendant breached the contract by violating rules of the Chicago Mercantile

Exchange). As such, where, as here, a complaint contains only conclusory and vague allegations

of breach of a contract, the complaint is subject to dismissal for failure to state a claim. See Clifden

Futures, 20 Misc. 3d at 641.

Moreover, the Complaint is noticeably absent of a single citation to any relevant

contractual provision of the PSA, or any amendment thereto, that was purportedly breached. This

deficiency is fatal to Plaintiff’s claim and the cause of action for breach of contract should be

dismissed. See, e.g., New York City Educ. Const. Fund v. Verizon New York Inc., 114 A.D.3d 529,

531 (1st Dep’t 2014) (affirming dismissal of contract claim because complaint “does not specify

which provisions of the [agreement] defendant breached”); Clifden Futures, 20 Misc.3d at 642-

43 (granting motion to dismiss contract claim in part because “Complaint [was], in fact, unclear

as to exactly how the actions of [defendant] may be construed as a breach of the agreement between

the parties”; complaint “[did] not allege that [defendant] violated any specific provision of the

[agreement], nor the way in which [defendant's conduct] was improper”) (emphasis added).

Accordingly, Plaintiff’s breach of contract claim should be dismissed.

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II. THE COMPLAINT FAILS TO PLEAD AN “ALTERNATIVE” CLAIM FOR
SPECIFIC PERFORMANCE

Regardless of Plaintiff’s (insufficient) allegations concerning Defendant’s purported

failure to perform its obligations under the PSA, Plaintiff is not entitled to the remedy of specific

performance because it was not ready, willing, and able to close on May 27, 2022, the time of the

essence closing date of July 6, 2022, or any subsequent closing date. It is axiomatic that a plaintiff

seeking specific performance of a contract must have been ready, willing and able to perform at

the time of the closing. See Gindi v. Intertrade Internationale Ltd, 50 A.D.3d 575, 575 (1st Dep’t

2008); see also Fridman v. Kucher, 34 A.D.3d 726, 727-28 (2d Dep’t 2006) (“A purchaser who

seeks specific performance of a contract for the sale of real property must demonstrate that he or

she was ready, willing, and able to perform the contract, regardless of any anticipatory breach by

a seller.”). Indeed, “plaintiff must make this showing regardless of whether the defendant was

able to convey the property in accordance with the terms of the contract.” Dairo v. Rockawav

Blvd. Prop. LLC, 44 A.D.3d 602, 602 (2d Dep’t 2007).

Here, Plaintiff has not pled (let alone demonstrated) that it was “ready, willing and able”

to close on May 27, 2022 (the alleged “outside” Closing Date) or on July 6, 2022, the time of the

essence closing date. Indeed, Defendant attempted to close with Plaintiff on July 6, 2022, but

Plaintiff refused to attend the closing or allow Defendant access to its counsel’s offices to transfer

the required closing deliverables. See Dkt Nos. 36, 38; see also McDougall Aff. Ex. 2. Given that

the burden is on the plaintiff to show that it was ready, willing and able to close, see Pesa v. Yoma

Dev. Grp., 18 N.Y.3d 527, 532 (2012), and Plaintiff has “submit[ted] no documentation or other

proof to substantiate that it had the funds necessary to purchase the property, it cannot prove, as a

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matter of law that it was ready, willing, and able to close.” Fridman, 34 A.D.3d at 728.

Accordingly, Plaintiff’s claim for specific performance must be dismissed.4

III. THE COMPLAINT FAILS TO STATE A CLAIM FOR DECLARATORY
RELIEF

Plaintiff’s third cause of action seeking a declaratory judgment “is unnecessary and

inappropriate” where, as here, Plaintiff has an identical breach of contract claim that does not seek

any substantive relief beyond what a favorable judgment on the contract claim would already

provide. See Ithilien Realty Corp. v. 180 Ludlow Dev. LLC, 140 A.D.3d 621, 622 (1st Dep’t 2016).

Under New York law, a declaratory judgment “is unnecessary and inappropriate when the

plaintiff has an adequate, alternative remedy in another form of action, such as breach of contract.”

Id. (quotation marks omitted); see also Alizio v. Feldman, 82 A.D.3d 804, 805 (2d Dep’t 2011).

Thus, in Ithilien Realty, the Appellate Division held that the trial court properly rejected the

plaintiff’s declaratory judgment claims where the plaintiff “has or should have sought the

appropriate relief through its first cause of action sounding in breach of contract.” 140 A.D.3d at

622. The same is true here where both the declaratory judgment and breach of contract claims

seek return of the deposit based on allegations that Plaintiff defaulted on the PSA by, among other

things, failing to “complete the Retail Unit in accordance with the PSA’s plans and specifications

or to obtain a proper Architect’s certificate on or before the outside Closing Date.” Compare

Compl.¶ 48 with Compl. ¶ 38; see also AIX Partners I, LLC v. AIX Energy, Inc., No. 651401/2012,

2013 WL 4533584, at *6 (Sup. Ct. N.Y. Cty. Aug. 22, 2013) (dismissing declaratory judgment

4
Contemporaneously with the filing of this motion, Defendant has moved by Order to Show
Cause to cancel and/or vacate the notice of pendency of action filed by Plaintiff in connection with
the Property. See Dkt. No. 45 (Mot. Seq. No. 002). Given that the specific performance claim is
the sole basis alleged to support Plaintiff’s bad faith notice of pendency filing, if the Court
dismisses Plaintiff’s specific performance claim, the notice of pendency should be dismissed as
well.

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FILED: NEW YORK COUNTY CLERK 09/30/2022 06:53 PM INDEX NO. 652698/2022
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/30/2022

claim where its “allegations parrot the breach of contract claim and seek the same relief”). The

declaratory judgment claim should therefore be dismissed.

IV. THE COMPLAINT FAILS TO STATE A CLAIM FOR EQUITABLE ESTOPPEL
AND PROMISSORY ESTOPPEL

Plaintiff attempts to state a claim for equitable estoppel and promissory estoppel “in the

alternative” to its claims for breach of contract and specific performance (which itself is already

plead in the alternative to the breach of contract claim). Compl. ¶¶ 52, 63. Plaintiff’s sole basis

for its estoppel claim is the “clear and unambiguous promise to EXRP that it would deliver the

Retail Unit in accordance with the PSA’s plans and specifications and obtain a proper Architect’s

certificate on or before the outside Closing Date.” Compl. ¶ 63. This allegation is virtually

identical to Plaintiff’s breach of contract and specific performance claims. See Compl. ¶ 38

(“Seller defaulted under the PSA by . . . failing to complete the Retail Unit in accordance with the

PSA’s plans and specifications or to obtain a proper Architect’s certificate on or before the outside

Closing Date”); id. ¶ 48 (“Seller has defaulted under the PSA by . . . failing to complete the Retail

Unit in accordance with the PSA’s plans and specifications or to obtain a proper Architect’s

certificate on or before the outside Closing Date”). The overlap in Plaintiff’s allegations is not

surprising as Plaintiff does not -- because it cannot -- identify any independent duty or promise

apart from Defendant’s contractual obligation that could support an equitable or promissory

estoppel claim. This failure is fatal to Plaintiff’s claim. See MatlinPatterson ATA Holdings LLC

v. Fed. Express Corp., 87 A.D.3d 836, 842-43 (1st Dep’t 2011) (“[Plaintiff’s] claim for promissory

estoppel is precluded because a breach of contract claim may not give rise to tort liability unless a

legal duty independent of the contract—i.e., one arising out of circumstances extraneous to, and

not constituting elements of, the contract itself—has been violated.”) (internal citations and

quotations omitted); Celle v Barclays Bank, P.L.C., 48 A.D.3d 301, 302 (1st Dep’t 2008) (“In the

absence of a duty independent of the agreement, the promissory estoppel claim was duplicative of

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FILED:

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Melissa Anne Crane Track Judge’s New Case

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Document Filed Date

September 30, 2022

Case Filing Date

August 01, 2022

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Motion,Ex Parte: Exrp 14 Holdings Llc v. Ls-14 Ave Llc

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