Complaint,Petition: David Katz, Caroline Ruiz-Katz v. Christine Le Lamer, Christine Le Lamer Revocable Living Trust, Law Offices Of Nathaniel Muller P.C.

On January 09, 2017 a Complaint,Petition was filed involving a dispute between Caroline Ruiz-Katz, David Katz, and Christine Le Lamer, Christine Le Lamer Revocable Living Trust, Law Offices Of Nathaniel Muller P.C., for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 01/09/2017 03:27 PM INDEX NO. 650147/2017
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 01/09/2017

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------- X
David Katz and Caroline Ruiz-Katz, Index No.

Plaintiffs,

-against- COMPLAINT

Christine Le Lamer, Individually, and as Trustee of
the Christine Le Lamer Revocable Living Trust,

Defendant,

-and-

Law Offices ofNathaniel Muller P.C.,
as Stakeholder,

Nominal Defendant.
------------------------ ------- --------- --------------------- ---- -- - X

Plaintiffs David Katz and Caroline Ruiz-Katz (collectively, "Plaintiffs"), through their

counsel, Stem Tannenbaum & Bell LLP, as and for their complaint against defendant Christine

Le Lamer, individually, and as Trustee of the Christine Le Lamer Revocable Living Trust

(collectively, "Defendant" or "Seller"), and nominal defendant the Law Offices ofNathaniel

Muller P.C. as stakeholder ("Stakeholder"), allege as follows:

Parties

1. Plaintiffs reside in the State ofNew York, New York County. Pursuant to a

written "Condominium Unit - Contract of Sale" dated September 9, 2016 (the "Contract"),

Plaintiffs are prospective purchasers of the premises known as Unit No. lOA and lOB (the

"Unit") in the Bentley Condominium Building (the "Building") located at 159 East 30th Street,

New York, New York 10016, for a purchase price of$2,800,000 (the "Purchase Price"). (The

Contract is annexed hereto as Exhibit A.)

2. Upon information and belief, defendant Christine Le Lamer ("Le Lamer") resides

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at 1005 8th Street, Apartment 413, Miami Beach, Florida 33139.

3. Upon information and belief, Le Lamer is the sole trustee of the Christine Le

Lamer Revocable Living Trust.

4. Upon information and belief, the Christine Le Lamer Revocable Living Trust is a

trust created under the laws of the State of Florida or the State of New York.

5. Upon information and belief, the Christine Le Lamer Revocable Living Trust

("Seller" and sometimes with Plaintiffs, the "Parties") is the owner of the Unit.

6. Upon information and belief, nominal defendant Stakeholder (Law Offices of

Nathaniel Muller P.C.) is a domestic professional corporation with an office located at 1270

Broadway, Suite 806, New York, New York 10001.

7. Plaintiffs made a deposit of$280,000 pursuant to the terms of Paragraph 3 of the

Contract (the "Contract Deposit"), which is being held in Stakeholder's escrow account.

The Unit Contains an Illegal Greenhouse Space
That Violates Zoning Laws and Regulations and
The Building Code and Therefore Seller Is In Breach

8. The Unit was initially listed on a variety of real estate websites and possibly

elsewhere in June 2015 by Douglas Elliman, which holds itself out as a licensed real estate

broker in the State ofNew York ("Seller's Listings").

9. The Unit, as currently configured, has approximately 2170 square feet of gross

interior space (including the "greenhouse space" discussed below, which is approximately 366

square feet, gross) and approximately 1280 square feet of gross exterior space. It is the only

apartment on the 1Oth floor of the Building and includes a private terrace, comer kitchen,

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living/dining/entertaining area, formal dining room and two large bedroom suites.

10. Seller' s Listings also highlighted "atrium ceilings."

11. As set forth in more detail herein, the Unit is comprised in part of a "greenhouse"

space (the "Greenhouse Space").

12. Seller's Listings do not indicate that the Unit includes the Greenhouse Space. Nor

does the Unit appear to include the Greenhouse Space because the Greenhouse Space, as

presently used, has been absorbed into and is used as habitable living space, that is, as part of the

designated " living room."

13. The Greenhouse Space also has heating, air conditioning, lighting and the same

flooring as the contiguous living room.

14. Therefore, Plaintiffs had no reason to suspect that the Unit contained an illegal

addition, i.e., the Greenhouse Space, until after they executed the Contract.

15. As set forth herein, however, after the execution of the Contract, Plaintiffs

discovered that the Unit does include the Greenhouse Space, and there is sound and ample

evidence that establishes that the Greenhouse Space, which upon information and belief was

constructed in 1990, violates New York City zoning laws and regulations (the "Zoning Law")

and current building code (the "Building Code"). It constitutes an illegal expansion of the

legally permissible floor area ration ("FAR"), which is the Building's legally permissible

maximum square footage.

16. Therefore, as set forth in more detail herein, Seller has breached Paragraph 18(c)

of the Contract of Sale which states:

Seller shall convey and Purchaser shall accept fee simple title to
the Unit in accordance with the term of this Contract subject to:

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(a) the Permitted Exceptions ...

(Ex. A, ~18. (Emphasis added).)

17. In turn, the Permitted Exceptions set forth in Schedule A(1) of the Contract apply

only to "[z]oning laws and regulations and landmark, historic or wetlands designated which are

not violated by the Unit and which are not violated by the Common Elements to the extent that

access to or use of the Unit would be materially and adversely affected." (Id. (emphasis added).)

18. Thus, because upon information and beliefthe Unit violates zoning laws and

regulations, Seller is unable to convey the Unit in accordance with Section 18(c) of the Contract.

19. Additionally, Paragraph 4(i) of the Rider to the Contract states:

to the best of Seller's knowledge, no alterations or additions have
been made to the Unit other than those approved by the
Condominium and that were made in full compliance with all
applicable laws, rules and regulations.

(Ex. A, R.4(i) (emphasis added).)

20. Despite Seller's representations in this regard, upon information and belief, Seller

has knowledge that the Greenhouse Space alteration or addition was not made " in full

compliance with all applicable laws, rules and regulations," and thus Seller is in breach of

Paragraph 4(i) of the Rider to the Contract.

21. Paragraph 6 of the Contract ("Closing Documents") states:

(i) All notes or notices of violations of law or
governmental orders, ordinances or requirements
affecting the Unit and noted or issued by an
government department, agency or bureau having
jurisdiction which were noted or issued on a or prior
to the date of closing shall have been cured by

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Seller.

22. Accordingly, as set forth herein, because there is an open complaint with the New

York City Department of Buildings (the "DOB") with respect to the legality of the Greenhouse

Space, it is possible that Seller will receive a notice of violation prior to closing, and therefore, as

a condition of Plaintiffs' obligation to close the transaction, it would have to cure such violation.

After the Contract Is Executed, Plaintiffs'
Architect Discovers the Greenhouse Space

23. Shortly after entering into the Contract, Plaintiffs retained the services of architect

Steven Zalben ("Zalben") to conduct appropriate due diligence and ensure that, among other

things, the Unit was in compliance with the Zoning Law and Building Code.

24. After conducting a search for permits related to the Unit on file with the DOB,

Zalben discovered an application submitted to the DOB in 1990 ("Job No. 100087326") for an

"Alteration Type 3" "job" "to install a glass enclosure to create a greenhouse on existing terrace

at lOth floor. No change for egress, use or occupancy" at the Building (the "1990 Application").

25. This was the second filing for the Greenhouse Space as the prior application ("Job

No. 100051809") submitted 3 months earlier had been disapproved and the only difference on

the job description was the additional language, "no change for egress, use or occupancy."

26. The DOB defmes a greenhouse as "a glass or slow burning plastic enclosed

building used for cultivating plants" (https://www1.nyc.gov/assets/buildings/rules/l _RCNY_23-

Ol.pdf). The current extension is not used for cultivating plants but as an extension ofthe

habitable space.

27. The 1990 Application was self-certified by an engineer (the "Self-Certifying

Engineer").

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28. Upon information and belief, self-certification is a process by which licensed

professionals bypass a full review or inspection of a construction project by DOB inspectors.

29. While the 1990 Application was approved by the DOB, there is no indication that

the Greenhouse Space was ever audited or inspected by the DOB inspectors. Indeed, the letter of

completion for Job No. 100087326 states:

Because this job was filed as Directive 14 of 1975, the owner
retained a registered professional engineer or registered architect,
who certified that he/she inspected the work approved on this
application and that it complies with the applicable laws, rules and
regulations of the Department of Buildings.

30. Furthermore, the DOB Letter of Completion states: "(b]ased on the nature of the

work filed on this application," i.e., for a greenhouse, "a new certificate of occupancy is not

required."

31. The Greenhouse Space, however, is not being used as a "greenhouse" (see supra

~26), but rather as an illegal extension of the Unit's habitable space.

32. Upon information and belief, the Self-Certifying Engineer is currently serving

time in federal prison and is therefore not readily available to provide any information as

respects the 1990 Application or the Greenhouse Space.

33. To continue his due diligence in this regard, Zalben filed a request with the DOB

for the 1990 plans associated with the Greenhouse Space construction (the "1990 Drawing").

34. The 1990 Drawing clearly, if inadvertently, indicates that the structure is in

violation of the Zoning Law. There is a note on the right side, center of the drawing, under the

heading "Zoning" that states:

The Lot Area available is 7454.8 square feet. The allowable floor
area is 74,546 square feet (using the allowed FAR of 10 and

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multiplying the Lot Area by the FAR). The existing Floor Area is
74, 545.8 square feet. The proposed Greenhouse is 300 square feet.
The percentage of Greenhouse to existing floor area is .04 which is
less than 1%.

(Emphasis added.)

35. It is the last sentence of the drawing respecting the percentage of existing floor

area that makes that Greenhouse Space addition obviously illegal.

36. There is no "rounding down" allowed in the Zoning Law, and no excess Floor

Area allowed, unless there has been a filing and approval for a variance. Zalben found no such

filing or approval.

37. The Self-Certifying Engineer clearly recognized that the Floor Area of the

Greenhouse Space needed to be incorporated into the total Floor Area for the building, and upon

information and belief he deliberately but erroneously allowed the excess 300 square feet to be

"allowed" under a fictitious presumption.

38. Had this application been submitted for review by the DOB, it would not have

been approved, as the total Floor Area with the Greenhouse addition was in excess of what was

allowed.

39. Zalben also is concerned that the Greenhouse Space is not structurally sound and

in compliance with current building codes.

40. The Zoning Law has been amended to limit the ability to build such " greenhouse"

structures.

41. In recent years, the DOB has begun a more rigorous enforcement of the zoning

laws and regulations and the building code as respects these "greenhouse" structures based on

the misuse of the previous process and concern for the stability and other problems related to

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these structures.

42. In fact, illegal "greenhouse" structures and the attendant change in the Zoning

Law, and increased enforcement was the subject of an article in the New York Times in 2014

("Manhattan Apartments with Illegal Greenhouses").

43. After his review of the 1990 Application, Zalben promptly brought the potential

Zoning Law and Building Code violations to Plaintiffs' attention.

44. Zalben informed Plaintiffs that the owner of a premises with an illegal greenhouse

such as the Greenhouse Space could be subject to significant fmes for violations, as well as fees

for the necessary permits, and the cost of any work needed to conform the structure pursuant to

all applicable laws, rules and regulations.

45. The owner also might be required to dismantle the structure, which in this

instance, could cost hundreds of thousands of dollars with an attendant decrease in the habitable

space of the Unit by approximately 300-350 square feet, thereby significantly devaluing the Unit.

46. As discussed above, after Zalben reviewed the 1990 Application, he filed a

request with the DOB for the 1990 Drawing, but the process of obtaining it proved to be time

consummg.

47. While waiting to receive the 1990 Drawing from the DOB and in a good faith

effort to resolve this serious issue, Elisabeth M. Kovac, Esq., ("Kovac"), counsel for Plaintiffs in

the purchase and sale of the Unit, fust contacted counsel for Seller, Nathaniel Muller, Esq.

("Muller"), about these concerns in a November 11, 2016 email.

48. Kovac set forth the issue and requested Muller's help in obtaining the 1990

Drawing because they believed that perhaps Seller was either in possession of the 1990 Drawing

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or could help Plaintiffs obtain a copy from the Building more expeditiously than Plaintiffs could

from the DOB.

49. On behalf of Seller, Muller refused to acknowledge any potential issues with the

Greenhouse Space and denied that any contractual obligations were triggered by the likely

Zoning Law and Building Code violations. In any event, Muller was either unable or unwilling

to provide the 1990 Drawing.

There Are Significant Concerns About The
Legality of the Unit As Presently Configured

50. At Seller's insistence, the closing was mutually scheduled for December 2, 2016

(the "December 2 Scheduled Closing").

51 . While simultaneously trying to resolve the Zoning Law and Building Code issues

concerning the Greenhouse Space, Plaintiffs prepared in good faith for the closing and sought

title insurance for the Unit.

52. On November 29, 2016, Kovac received an email from Amy Horowitz

("Horowitz"), Vice President ofNew York Operations at All Area Abstract, LLC. As discussed

in further detail therein, both Old Republic National Title Insurance Company and Chicago Title

were unwilling to insure the transaction because "a claim could be made based on the perimeter

of the unit(s) today no longer being the same as specified in the Offering Plan and Condominium

Declaration."

53. Immediately after receiving this advice from the title company, as required

pursuant to Paragraph 18(a) ofthe Contract of Sale, Kovac sent a letter to Muller informing him

that based on the advice from the title company, it appeared that Seller was unable to convey title

in accordance with the Contract and therefore, the December 2 Scheduled Closing could not take

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place.

54. Significantly, one day before the December 2 Scheduled Closing, Zalben finally

received the 1990 Drawing from the DOB. Zalben immediately compared the drawing with the

measurements and notes he had taken during inspection of the Unit and, in addition to seeing the

note on the drawing discussed above that clearly indicates that the structure is in violation of the

Zoning Law, Zalben also identified a number of discrepancies between the 1990 Drawing and

the current configuration and use of the Unit, including but not limited to:

a) the Greenhouse Space and attendant bump outs at floor level were new and
larger than what was shown on the 1990 Drawing;

b) the 1990 Drawing contains no structure or details for the Greenhouse Space
which brings into question conformance with the Building Code;

c) the 1990 Drawing shows a 36-inch minimum clearance required between the
parapet wall and the Greenhouse Space but the clearance only measures 32
inches;

d) the apparent removal of a section of the exterior east wall; and

e) the bedroom on the southeast side appears as a much smaller room.

55. Despite the advice from the title company and more significantly, the serious

concerns uncovered by Zalben' s review ofthe 1990 Drawing, in good faith, Plaintiffs, Kovac,

Zalben, Horowitz, and a court reporter appeared at the December 2 Scheduled Closing, in part to

explain and state their objections on the record as to why the sale of the Unit could not close

under the Contract prior to resolving the legality of the Greenhouse Space.

56. Neither Seller nor any representative of Seller appeared at the December 2

Scheduled Closing.

57. Seller therefore defaulted under the Contract by failing to appear at the December

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2 Scheduled Closing.

The Transaction Cannot Close Because
Seller Is Unable to Perform Under the Contract

58. Kovac detailed the disparities between the 1990 Drawing and the Unit as

presently used and configured in another email to Muller on December 11 , 2016, and again

requested Seller's cooperation and compliance with the Contract in this regard.

59. Specifically, Kovac noted that Plaintiffs "remain very interested in solving any

outstanding issues related to the property- which certainly involves an understanding as to

whether the [Greenhouse Space] is violating the zoning and building regulations and should be

dismantled, or if it can remain as is - and purchasing the apartment upon resolution."

60. Nevertheless, the only effort made by Seller to comply with its obligations was to

proffer a title company that purported to agree to insure title.

61. The proffer oftitle insurance, even if met, does not rectify Seller' s breach of the

Contract, i.e., it is unable to tender title to premises (the Unit) that does not violate zoning laws

and regulations required under Paragraph 18 and Schedule A(l) (supra).

62. In addition, upon information and belief, Seller also is in violation of her

representations under Paragraph 4(i) of the Rider to the Contract, to wit, Seller has knowledge

that the Unit's "alterations or additions," i.e., the Greenhouse Space, were not made "in full

compliance with all applicable laws, rules and regulations."

63. Indeed, upon information and belief, a previously scheduled sale of the Unit to a

previous purchaser did not close, and given the failure of Seller to offer any cooperation

throughout the process, Plaintiffs have reason to believe that similar issues arose during the prior

sale and therefore, Seller had knowledge of the violating conditions and is in breach of Paragraph

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4(i) of the Rider to the Contract.

64. On December 14, 2016, Kovac sent yet another good faith request to work with

Seller to remediate these problems, indicating that should Muller and the Seller continue with

their refusal to cooperate, Plaintiff would be forced to initiate a DOB inspection to get a formal

ruling as to the use and legality of the Greenhouse Space.

65. In response, and as further evidence that the Greenhouse Space violates the

Zoning Law, as well as the Building Code, Muller sent a letter, dated December 14, 2016,

unilaterally purporting to schedule a time-of-the essence closing for January 13, 2017 at 10:00

a.m. at his offices (the "Improper Time-of-the-Essence Closing").

66. Muller also stated that no further DOB inspection would be authorized.

67. The Improper Time-of-the-Essence closing unilaterally scheduled by Seller is null

and void given Seller's default in failing to appear for the December 2 Scheduled Closing, and

more significantly, in light of Seller's inability to convey title to the Unit in conformance with its

obligations under the Contract.

68. Nevertheless, in an effort to resolve the issue prior to the purported Improper

Time-of-the-Essence Closing, as Kovac had informed Muller, shortly after receiving the

Improper Time-of-the-Essence Closing notice, Zalben, on behalf of Plaintiffs filed a complaint

with DOB on December 14, 2016 to determine whether the Unit includes an "illegal conversion"

of "residential space."

69. Muller contacted Kovac on January 6, 2017 regarding the Improper Time-of-the-

Essence Closing. Kovac reiterated that the issue is not simply whether or not any company will

provide title insurance for the Unit. Rather, again Kovac reiterated that there is ample evidence

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that the Greenhouse Space violates the Zoning Law, as well as the Building Code, and therefore

Seller is unable to convey the Unit in accordance with the Contract.

70. Either in bad faith or with a true misunderstanding as to the scope of the issue,

Muller remained adamant in his attempts to force Plaintiffs to close on January 13, 2017.

71. Again, Muller threatened to deny the DOB access to the Unit.

72. Plaintiffs are not attempting to delay the closing of the Unit indefinitely nor for

any significant amount of time. While it can, of course, take longer, depending on both a grant

of access and workload, complaints of this type are typically dealt with by the DOB within

approximately 40 day of their filing. Therefore, by the time of the Improper Time-of-the-

Essence Closing date of January 13, 2017, nearly 30 days in the prospective 40-day time period

will have passed.

73. Seller's failure to permit such a short adjournment of the closing to get a formal

ruling from the DOB on this very significant issue is further evidence that, upon information and

belief, Seller has knowledge that the Greenhouse Space was not made "in full compliance with

all applicable laws, rules and regulations" in violation of Paragraph 4(i) of the Rider to the

Contract.

74. Plaintiffs sincerely hoped that the DOB would issue a ruling prior to January 13,

2017, but while they believe the Improper Time-of-the-Essence Closing is infirm, as the date

approaches, Plaintiffs were forced to commence this action to protect their rights under the

Contract.

75. Plaintiffs have a continued interest in the purchase of the Unit, as well as the

ability to provide the previously agreed upon funds, which is demonstrated by their depositing

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the remaining balance of the Purchase Price, i.e., $2,520,000, and closing costs, for a total of

$2,600,000 to be held in escrow by their attorney, Elisabeth M. Kovac, Esq. P.C.

76. Contrary to Plaintiffs commitment to the resolution of this matter, Seller has

relisted the Unit on a number of real estate websites, stating "[c]ontract signed but looking for

backup."

77. Accordingly, because the Unit is real property, which is unique, and because

Plaintiffs remain committed to the purchase the Unit in conformance with the Contract, they are

immediately filing a lis pendens upon commencement of this action.

AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Contract- Paragraph 18 of the Contract)

78. Plaintiffs hereby repeat and reallege the allegations contained in paragraphs 1

through 77 above as though fully set forth herein.

79. The Contract constitutes a valid and binding contract between Plaintiffs and

Seller.

80. Plaintiffs have performed all of their obligations under the Contract.

81. Seller is in breach of its obligations under Paragraph 18(c) and Schedule A(1) of

the Contract because the Unit contains the Greenhouse Space which violates the Zoning Law and

Building Code.

82. Seller has wrongfully scheduled the Improper Time-of-the-Essence Closing and is

attempting to force Plaintiffs to close, despite that Seller is in breach ofthe Contract.

83 . As a result, Plaintiffs have suffered monetary damages in an amount to be

determined at trial, but not less than $100,000.

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AS AND FOR A SECOND CAUSE OF ACTION
(Breach of Contract- Paragraph 4 of the Rider to the Contract)

84. Plaintiffs hereby repeat and reallege the allegations contained in paragraphs 1

through 83 above as though fully set forth herein.

85. The Contract constitutes a valid and binding contract between Plaintiffs and

Seller.

86. Plaintiffs have performed all of their obligations under the Contract.

87. Seller is in breach of Paragraph 4(i) of the Rider to the Contract, because upon

information and belief, Seller has knowledge that the Greenhouse Space was not made in full

compliance with all applicable laws, rules and regulations, and instead violates the Zoning Law,

as well as the Building Code.

88. Seller has wrongfully scheduled the Improper Time-of-the-Essence Closing and is

attempting to force Plaintiffs to close, despite that Seller is in breach of the Contract.

89. As a result, Plaintiffs have suffered monetary damages in an amount to be

determined at trial, but not less than $100,000.

AS AND FOR A THIRD CAUSE OF ACTION
(Injunction - Enjoining the Closing Until After DOB Determination)

90. Plaintiffs hereby repeat and reallege the allegations contained in paragraphs 1

through 89 above as though fully set forth herein.

91. The Unit is unique real property.

92. The Greenhouse Space violates the Zoning Law, as well as the Building Code,

and therefore Seller is unable to convey title to the Unit in accordance with the Contract.

93. Seller has wrongfully scheduled the Improper Time-of-the-Essence Closing and is

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attempting to force Plaintiffs to close, despite that Seller is in breach of the Contract.

94. Plaintiffs lack an adequate remedy at law.

95. Therefore, Plaintiffs are entitled to preliminary and permanent injunctive relief (i)

enjoining the closing until a reasonable time after the DOB issues a determination that the Unit is

not in violation of any laws, rules and/or regulations, or in the alternative, (ii) in the event the

DOB issues a determination that the Unit is in violation of any laws, rules and/or regulations,

enjoining the closing until no earlier than a reasonable time after Seller cures the violation(s)

pursuant to Paragraph 6(c)(i) of the Contract.

AS AND FOR A FOURTH CAUSE OF ACTION
(Declaratory Judgment- Defendant Cannot Properly
Convey Title to the Unit under the Contract)

96. Plaintiffs hereby repeat and reallege the allegations contained in paragraphs 1

through 95 above as though fully set forth herein.

97. The sale of the Unit cannot close until Seller is able to convey title to the Unit in

accordance with the Contract.

98. If the Unit violates the Zoning Law or the Building Code, Seller is unable to

convey title to the Unit in accordance with the Contract.

99. Upon information and belief, the Greenhouse Space violates zoning laws and

regulations as well as the Building Code.

100. Nevertheless, Seller has wrongfully scheduled the Improper Time-of-the-Essence

Closing and is attempting to force Plaintiffs to close, despite that Seller is in breach of the

Contract.

101. Therefore, there is an actual justiciable controversy among the Parties regarding

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whether Seller is unable to convey good title in accordance with the Contract, and a judicial

declaration is required so as to determine the respective Parties' rights and obligations.

102. Plaintiffs lack an adequate remedy at law.

103. Based on the foregoing, Plaintiffs are entitled to a declaratory judgment (i)

enjoining the closing until a reasonable time after the DOB issues a determination that the Unit is

not in violation of any laws, rules and/or regulations, or in the alternative, (ii) in the event the

DOB issues a determination that the Unit is in violation of any laws, ru1es and/or regulations,

enjoining the closing until no earlier than a reasonable time after Seller cures the violation(s)

pursuant to Paragraph 6(c)(i) of the Contract.

AS AND FOR A FIFTH CAUSE OF ACTION
(Declaratory Judgment- Purported Timed-Of-The-Essence Closing is Improper)

104. Plaintiffs hereby repeat and reallege the allegations contained in paragraphs 1

through 103 above as though fully set forth herein.

105. The December 2 Scheduled Closing was set to take place by mutual agreement at

the offices ofElizabeth M. Kovac, Esq., P.C., located at 90 Park Avenue, Floor 18, New York,

New York 10016.

106. Neither Seller nor any representative of Seller appeared at the December 2

Schedu1ed Closing.

107. By failing to appear at December 2 Scheduled Closing, Seller is in defau1t under

the Contract.

108. Despite the aforementioned, as well as notice that the Unit violates the Zoning

Law and the Building Code, Seller purported to unilaterally schedu1e the Improper Time-of-the-

Essence closing for January 13, 2017.

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109. As such, there is an actual justiciable controversy among the Parties regarding

whether the Improper Time-of-the-Essence Closing for January 13, 2017 was properly

scheduled.

110. Plaintiffs lack an adequate remedy at law.

111 . A judicial declaration is required so as to determine the respective Parties' rights

and obligations as respects the Improper Time-of-the-Essence Closing.

112. Based on the foregoing, Plaintiffs are entitled to a declaratory judgment that the

Improper Time-of-the-Essence Closing is null and void and of no force or effect.

AS AND FOR A SIXTH CAUSE OF ACTION
(Specific Performance)

113. Plaintiffs hereby repeat and reallege the allegations contained in paragraphs 1

through 112 above as though fully set forth herein.

114. The Unit is unique real property.

115. At all times, Plaintiffs have performed their contractual obligations under the

Contract including following all the procedures necessary to prepare for the sale of the Unit.

116. Seller has breached its contractual obligations under the Contract based on its

inability to convey title in accordance with Paragraph 18(c) and Schedule A( 1) of the Contract

and its misrepresentations under Paragraph 4(i) of the Rider to the Contract.

117. The sale of the Unit cannot close until Seller is able to convey title to the Unit in

accordance with the Contract.

118. Plaintiffs lack an adequate remedy at law.

119. As a result ofthe foregoing, Plaintiffs are entitled to a judgment awarding

Plaintiffs specific performance requiring Seller to close on the sale ofthe Unit at such time as

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Seller is able to convey title to the Unit in compliance with the terms of the Contract.

AS AND FOR A SEVENTH CAUSE OF ACTION
(Breach of the Covenant of Good Faith and Fair Dealing)

120. Plaintiffs hereby repeat and reallege the allegations contained in paragraphs 1

through 119 above as though fully set forth herein.

121. There is an implied covenant of good faith and fair dealing contained in the

Contract.

122. Seller has breached this covenant of good faith and fair dealing in failing to

acknowledge the Greenhouse Space violates the Zoning Law and the Building Code and refusing

to cooperate with Plaintiffs in resolving this issue and its attendant breach of the Contract.

123. As a result, Plaintiffs have suffered monetary damages in an amount to be

determined at trial.

AS AND FOR AN EIGHTH CAUSE OF ACTION
(Injunction- Enjoining Stakeholder from Releasing the Contract Deposit to Seller)

124. Plaintiffs hereby repeat and reallege the allegations contained in paragraphs 1

through 123 above as though fully set forth herein.

125. Seller has purportedly scheduled the Improper Time-of-the-Essence Closing for

January 13, 2017 and threatened to release the Contract Deposit to Seller at that time or shortly

thereafter.

126. The Improper Time-of-the-Essence closing is invalid because Seller failed to

appear for the previous December 2 Scheduled Closing and does not have the right to

unilaterally notice a time-of-the-essence closing.

127. Seller is presently in breach of the Contract and unable to convey title to the Unit

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in accordance with the Contract.

128. Stakeholder has threatened to release the Contract Deposit to Seller.

129. Plaintiffs lack an adequate remedy at law.

130. Plaintiffs are therefore entitled to preliminary and permanent injunctive relief

preventing Stakeholder from releasing the Contract Deposit to Seller.

AS AND FOR A NINTH CAUSE OF ACTION
(Attorneys' Fees)

131. Plaintiffs hereby repeat and reallege the allegations contained in paragraphs 1

through 130 above as though fully set forth herein.

132. Paragraph 52 of the Rider to the Contract states:

... (I]n the event that the Escrowee receives a Notice of Objection
from a party objecting to the release of the Contract Deposit, then
the party providing said [N]otice of Objection must bring an action
or proceeding to recover the Contract Deposit within forty five
(45) days ofthe Escrowee's receipt ofthe Notice of Object .. . In
the event that either party commences an action or proceeding
against the other party in connection herewith, the non-prevailing
party shall reimburse the prevailing party for all court costs,
including without limitation reasonable attorneys' fees, incurred in
connection with such action or proceeding.

133. This action has been commenced, inter alia, to enjoin Stakeholder from releasing

the Contract Deposit to Seller, which Stakeholder threatened to do pursuant to Paragraph 52 of

the Rider to the Contract, stating, "[T]he present notice starts the running deadline set forth in

(Rider to the] Contract Paragraph 52, regarding release of the funds from escrow to Seller, and

your only recourse [is] to start a court action within fort five (45) days hereof."

134. Although Stakeholder's reliance on Paragraph 52 is incorrect, Plaintiffs are

entitled to all court costs, including without limitation reasonable at

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Document Filed Date

January 09, 2017

Case Filing Date

January 09, 2017

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Complaint,Petition: David Katz, Caroline Ruiz-Katz v. Christine Le Lamer, Christine Le Lamer Revocable Living Trust, Law Offices Of Nathaniel Muller P.C.

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