Preview
FILED: NEW YORK COUNTY CLERK 05/24/2017 01:41 PM INDEX NO. 652804/2017
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/24/2017
Exhibit 9
FILED: NEW YORK COUNTY CLERK 05/24/2017
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NYSCEF DOC. NO. 13
20 RECEIVED NYSCEF: 05/24/2017
05/04/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ON THE WAY TO BROOKLYN, LLC,
Index No.: 152021/17
Plaintiff,
-against- REPLY
THE HOME OF THE SAGES OF ISRAEL, INC.
Defendants.
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Steven A. Weg, an attorney duly admitted to practice law before the Courts of the State of
New York, affirms the following under the penalty of perjury:
1. I am a member of Goldberg Rimberg & Weg PLLC, attorneys for defendant The
Home of The Sages of Israel, Inc. (“Defendant”). I make this affirmation in further support of
Defendant’s motion seeking an order: (a) pursuant to CPLR §3211(a)(7), dismissing the instant
action for failing to state a cause of action; and (b) for such other and further relief as to this Court
seems just and proper.
2. Plaintiff On the Way to Brooklyn, LLC (“Plaintiff”) incorrectly argues that it is
entitled to bring this specific performance action even though Plaintiff must admit that Defendant
is not in breach of any agreement. In fact, the cases cited by Plaintiff prove that Plaintiff may not
maintain an action seeking a remedy of specific performance when Defendant is not in breach.
3. Plaintiff selectively cites cases to creatively argue that it is entitled to bring this
action to seek judicial approval of the sale. Not a single authority cited by Plaintiff holds that
Plaintiff is correct. No authority cited by Plaintiff holds that a purchaser of real property owned
by a religious corporation may commence an action seeking specific performance when there is
no breach. No authority cited by Plaintiff holds that a purchaser of real property that is frustrated
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by lengthy judicial approval proceedings can circumvent those proceedings on its own whim by
commencing an action for specific performance.
4. As Plaintiff admits, a proceeding for approval of the sale is already pending under
Index No.: 153111/2015. See, Plaintiff’s Opposition at p. 4. Plaintiff’s assertion that baseless
objections have caused that proceeding to take longer than it should take is true but that alone does
not permit the instant action to move forward. If Plaintiff has a procedurally proper way of
resolving such proceeding then Plaintiff should move within the context of such proceedings.
Starting new lawsuits is not the answer.
5. Nor is Plaintiff excused from the elementary requirement that it plead that Plaintiff
is ready, willing and able to close. While Plaintiff argues that cases it cites do not mention being
ready, willing and able to close, Plaintiff ignores that those cases are not dealing with the same
issue as this motion. Plaintiff’s arguments simply does not hold water when put to the fire.
ARGUMENT
A. Plaintiff Was Required To Allege a Breach
6. Defendant does not dispute that this Court can approve the terms of a contract
wherein a religious corporation agrees to sell real property in a proper case. But that is not the
issue in this motion. Instead, this motion addresses when a plaintiff can seek specific performance.
The remedy of specific performance, as argued extensively in Defendants’ moving papers, is only
available when a defendant breaches a contract. See, Cho v. 401-403 57th St. Realty Corp., 300
A.D.2d 174, 175, 752 N.Y.S.2d 55, 57 (1st Dept. 2002) (“specific performance is an equitable
remedy for a breach of contract, rather than a separate cause of action”). In other words, this Court
can approve or disapprove a sale of real property under Not For Profit Law §511 when a party
seeks specific performance of a contract of sale wherein a religious corporation is the seller. A
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plaintiff cannot, however, mask a proceeding for judicial approval as one for specific performance
when there is no breach as a basis for specific performance.
7. In fact, a case frequently cited by Plaintiff in its opposition makes this point very
clearly. In Church of God of Prospect Plaza v. Fourth Church of Christ, Scientist, of Brooklyn,
76 A.D.2d 712, 713, 431 N.Y.S.2d 834, 836 (1980), aff'd, 54 N.Y.2d 742, 426 N.E.2d 480 (1981),
the Court is quite explicit as to when an action for specific performance can be brought, and
specifically states that a court only considers the Not for Profit Law permitting it to approve a
contract after there is a breach:
Where the seller refuses to perform and the buyer sues for specific performance,
the trial court must satisfy itself that the test prescribed in subdivision (d) of section
511 of the Not-For-Profit Corporation Law has been met before awarding relief to
the plaintiff.
Id at 718.
8. Plaintiff cites to three cases and claims that those cases prove that Plaintiff need not
allege a breach of contract prior to seeking the remedy of specific performance.
9. Plaintiff argues on page 6 of its brief in opposition that:
Plaintiffs requesting specific performance of the sale of a religious
corporation’s property need not plead that Defendants have breached the
real estate contract, as Scher, Muck, Church of God, and numerous other
cases make clear. None of those cases involves an alleged breach of
contract, and none requires that breach be pleaded in order to support a
request for specific performance. Instead, a specific performance claim is a
vehicle by which a buyer can ask the Court to determine that its transaction
should be approved, in accordance with N-PCL § 511(d).
10. Unfortunately, it appears as if Plaintiff did not actually read the cases that it cites.
This is because two of the three cases that Plaintiff cites specifically mention the action is for
“breach of contract.” The third (Scher) does not specifically address the background facts but
another reported decision on the same case does prove that it is a case for breach of contract.
Plaintiff’s selective citing of the cases will now be addressed below.
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11. In Church of God of Prospect Plaza v. Fourth Church of Christ, Scientist, of
Brooklyn, 76 A.D.2d 712, 431 N.Y.S.2d 834 (2nd Dept 1980), the Second Department opens its
decision as follows:
This is an appeal by the defendant from a judgment of the Supreme Court, Kings
County, which awarded the plaintiff money damages for breach of a contract to
sell real property owned by the defendant and upon which its church edifice was
erected.
Id at 713. The case does not otherwise discuss “pleading requirements” as Plaintiff makes it seem
in its argument. This Court should press Plaintiff as to how it could possibly represent to this
Court that Church of God does not require allegations of breach of contract when the words
“breach of contract” are in the very first sentence of the decision. Church of God is very clearly a
case for breach of contract.
12. Similarly, in Muck v. Hitchcock, 149 A.D. 323, 134 N.Y.S. 271 (4th Dept. 1912),
rev'd, 212 N.Y. 283, 106 N.E. 75 (1914), the Court explains that the Plaintiff “alleged that the
defendant after the making of the contract deeded the property to the other defendants and refused
to carry out its contract with the plaintiff.” Id. at 324. Indeed, Plaintiff itself submits a damning
quote from Muck on page 7 of its opposition, wherein Plaintiff cites “a court in equity in an action
to compel specific performance…” Plaintiff completely ignores that the word “compel” implies
that a party is refusing to abide by (or has breached) a contract. In other words, the Court in Muck
made clear that there was an allegation of a breach of contract by the seller. Somehow, though,
Plaintiff cites Muck for the opposite proposition: that Plaintiff need not allege a breach. The same
is simply not true.
13. It is true that Scher v. Yeshivath Makowa Corp., 54 A.D.3d 839, 864 N.Y.S.2d 113
(2nd Dept. 2008) (“Scher I”) does not mention the words “breach of contract,” but it is also equally
true that Scher I was not a motion to dismiss for failure to state a cause of action. Instead, Scher I
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is an appeal from a judgment on liability in favor of Plaintiff. It is quite obvious that a case
involving the propriety of a judgment would not address whether a plaintiff states a cause of action
as that matter would have been resolved much earlier in the pleading stage. Even still, Scher I is
not persuasive because Plaintiff failed to do its homework before citing Scher I.
14. A separate order from the same case proves that Scher is a case for breach of
contract. In Scher v. Yeshivath Makowa Corp., 20 A.D.3d 470, 799 N.Y.S.2d 106 (2nd Dept. 2005)
(“Scher II”), the Court notes in its very first sentence that it is “an action for specific performance
of a contract for the sale of real property or, alternatively, to recover damages for breach of
contract.” Id at 471. Plaintiff, of course, forgot to cite Scher II.
15. As this Court can plainly see from Church of God, Much and Scher I and II, Plaintiff
cannot maintain the instant action for specific performance, which is a remedy, without a breach
of contract. Here, no breach is alleged because none exists. Accordingly, the instant action should
be dismissed.
B. Plaintiff Must Allege It Is Ready, Willing and Able to Close
16. A plaintiff seeking specific performance must “show that it was ready and able to
perform its own contractual undertakings on the closing date.” Huntington Min. Holdings, Inc. v.
Cottontail Plaza, Inc., 60 N.Y.2d 997, 998, 459 N.E.2d 492, 492 (1983). Here, Plaintiff disagrees
with that well established concept without providing any basis for its position.
17. Plaintiff argues that specific performance cases involving religious corporations
need not allege that the Plaintiff is ready, willing and able to close. Plaintiff’s cites are, once again,
not on point. Plaintiff fails to point to any precedent holding that an action for specific performance
involving a religious corporation has different pleading requirements than an ordinary specific
performance action. Instead, Plaintiff inaccurately argues that various cases prove Plaintiff’s point
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by omission (i.e. that because they do not mention being ready, willing able means that it must not
be alleged).
18. Plaintiff, once again, has makes up its own law without any authority. Indeed, cases
do discuss the concept of “ready, willing and able” in the context of religious corporations. See,
e.g., Vista Developers Corp. v. Bd. of Managers of Diocesan Missionary & Church Extensions
Soc'y of Protestant Episcopal Church in Diocese of N.Y., 135 A.D.3d 559, 561, 25 N.Y.S.3d 73,
75 (2nd Dept. 2016.), leave to appeal denied sub nom. Vista Developers Corp. v. Bd. of Managers
of Diocesan Missionary & Church Extensions Soc'y of Protestant Episcopal Church in the Diocese
of N.Y., 27 N.Y.3d 906, 56 N.E.3d 899 (2016).
19. Nor does Plaintiff show that it is ready willing and able to close. Notably, while
Plaintiff argues that it made a downpayment, Plaintiff does not argue that it has the balance of the
purchase price available to close. Plaintiff is clearly not ready, willing and able to close if it does
not have the funds to do so. See, Goller Place Corp. v. Cacase, 251 A.D.2d 287, 288, 672
N.Y.S.2d 923, 923–24 (2nd Dept. 1998) (“Here, the plaintiff… submitted no documentation or
other proof to substantiate his assertion that he had the funds necessary to purchase the property
and thus, he is unable to prove that he was ready, willing, and able to close the sale as a matter of
law”).
20. Accordingly, Plaintiff’s Complaint must be dismissed on this ground as well.
WHEREFORE, it is respectfully requested that this Court grant the instant motion in its
entirety and dismiss the instant action.
Dated: New York, New York
May 4, 2017
/s/ Steven A. Weg
Steven A. Weg
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Preview
FILED: NEW YORK COUNTY CLERK 05/24/2017 01:41 PM INDEX NO. 652804/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/24/2017 Exhibit 9 FILED: NEW YORK COUNTY CLERK 05/24/2017 05/04/2017 01:41 03:32 PM INDEX NO. 652804/2017 152021/2017 NYSCEF DOC. NO. 13 20 RECEIVED NYSCEF: 05/24/2017 05/04/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X ON THE WAY TO BROOKLYN, LLC, Index No.: 152021/17 Plaintiff, -against- REPLY THE HOME OF THE SAGES OF ISRAEL, INC. Defendants. --------------------------------------------------------------------X Steven A. Weg, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalty of perjury: 1. I am a member of Goldberg Rimberg & Weg PLLC, attorneys for defendant The Home of The Sages of Israel, Inc. (“Defendant”). I make this affirmation in further support of Defendant’s motion seeking an order: (a) pursuant to CPLR §3211(a)(7), dismissing the instant action for failing to state a cause of action; and (b) for such other and further relief as to this Court seems just and proper. 2. Plaintiff On the Way to Brooklyn, LLC (“Plaintiff”) incorrectly argues that it is entitled to bring this specific performance action even though Plaintiff must admit that Defendant is not in breach of any agreement. In fact, the cases cited by Plaintiff prove that Plaintiff may not maintain an action seeking a remedy of specific performance when Defendant is not in breach. 3. Plaintiff selectively cites cases to creatively argue that it is entitled to bring this action to seek judicial approval of the sale. Not a single authority cited by Plaintiff holds that Plaintiff is correct. No authority cited by Plaintiff holds that a purchaser of real property owned by a religious corporation may commence an action seeking specific performance when there is no breach. No authority cited by Plaintiff holds that a purchaser of real property that is frustrated 1 of 6 FILED: NEW YORK COUNTY CLERK 05/24/2017 05/04/2017 01:41 03:32 PM INDEX NO. 652804/2017 152021/2017 NYSCEF DOC. NO. 13 20 RECEIVED NYSCEF: 05/24/2017 05/04/2017 by lengthy judicial approval proceedings can circumvent those proceedings on its own whim by commencing an action for specific performance. 4. As Plaintiff admits, a proceeding for approval of the sale is already pending under Index No.: 153111/2015. See, Plaintiff’s Opposition at p. 4. Plaintiff’s assertion that baseless objections have caused that proceeding to take longer than it should take is true but that alone does not permit the instant action to move forward. If Plaintiff has a procedurally proper way of resolving such proceeding then Plaintiff should move within the context of such proceedings. Starting new lawsuits is not the answer. 5. Nor is Plaintiff excused from the elementary requirement that it plead that Plaintiff is ready, willing and able to close. While Plaintiff argues that cases it cites do not mention being ready, willing and able to close, Plaintiff ignores that those cases are not dealing with the same issue as this motion. Plaintiff’s arguments simply does not hold water when put to the fire. ARGUMENT A. Plaintiff Was Required To Allege a Breach 6. Defendant does not dispute that this Court can approve the terms of a contract wherein a religious corporation agrees to sell real property in a proper case. But that is not the issue in this motion. Instead, this motion addresses when a plaintiff can seek specific performance. The remedy of specific performance, as argued extensively in Defendants’ moving papers, is only available when a defendant breaches a contract. See, Cho v. 401-403 57th St. Realty Corp., 300 A.D.2d 174, 175, 752 N.Y.S.2d 55, 57 (1st Dept. 2002) (“specific performance is an equitable remedy for a breach of contract, rather than a separate cause of action”). In other words, this Court can approve or disapprove a sale of real property under Not For Profit Law §511 when a party seeks specific performance of a contract of sale wherein a religious corporation is the seller. A 2 of 6 FILED: NEW YORK COUNTY CLERK 05/24/2017 05/04/2017 01:41 03:32 PM INDEX NO. 652804/2017 152021/2017 NYSCEF DOC. NO. 13 20 RECEIVED NYSCEF: 05/24/2017 05/04/2017 plaintiff cannot, however, mask a proceeding for judicial approval as one for specific performance when there is no breach as a basis for specific performance. 7. In fact, a case frequently cited by Plaintiff in its opposition makes this point very clearly. In Church of God of Prospect Plaza v. Fourth Church of Christ, Scientist, of Brooklyn, 76 A.D.2d 712, 713, 431 N.Y.S.2d 834, 836 (1980), aff'd, 54 N.Y.2d 742, 426 N.E.2d 480 (1981), the Court is quite explicit as to when an action for specific performance can be brought, and specifically states that a court only considers the Not for Profit Law permitting it to approve a contract after there is a breach: Where the seller refuses to perform and the buyer sues for specific performance, the trial court must satisfy itself that the test prescribed in subdivision (d) of section 511 of the Not-For-Profit Corporation Law has been met before awarding relief to the plaintiff. Id at 718. 8. Plaintiff cites to three cases and claims that those cases prove that Plaintiff need not allege a breach of contract prior to seeking the remedy of specific performance. 9. Plaintiff argues on page 6 of its brief in opposition that: Plaintiffs requesting specific performance of the sale of a religious corporation’s property need not plead that Defendants have breached the real estate contract, as Scher, Muck, Church of God, and numerous other cases make clear. None of those cases involves an alleged breach of contract, and none requires that breach be pleaded in order to support a request for specific performance. Instead, a specific performance claim is a vehicle by which a buyer can ask the Court to determine that its transaction should be approved, in accordance with N-PCL § 511(d). 10. Unfortunately, it appears as if Plaintiff did not actually read the cases that it cites. This is because two of the three cases that Plaintiff cites specifically mention the action is for “breach of contract.” The third (Scher) does not specifically address the background facts but another reported decision on the same case does prove that it is a case for breach of contract. Plaintiff’s selective citing of the cases will now be addressed below. 3 of 6 FILED: NEW YORK COUNTY CLERK 05/24/2017 05/04/2017 01:41 03:32 PM INDEX NO. 652804/2017 152021/2017 NYSCEF DOC. NO. 13 20 RECEIVED NYSCEF: 05/24/2017 05/04/2017 11. In Church of God of Prospect Plaza v. Fourth Church of Christ, Scientist, of Brooklyn, 76 A.D.2d 712, 431 N.Y.S.2d 834 (2nd Dept 1980), the Second Department opens its decision as follows: This is an appeal by the defendant from a judgment of the Supreme Court, Kings County, which awarded the plaintiff money damages for breach of a contract to sell real property owned by the defendant and upon which its church edifice was erected. Id at 713. The case does not otherwise discuss “pleading requirements” as Plaintiff makes it seem in its argument. This Court should press Plaintiff as to how it could possibly represent to this Court that Church of God does not require allegations of breach of contract when the words “breach of contract” are in the very first sentence of the decision. Church of God is very clearly a case for breach of contract. 12. Similarly, in Muck v. Hitchcock, 149 A.D. 323, 134 N.Y.S. 271 (4th Dept. 1912), rev'd, 212 N.Y. 283, 106 N.E. 75 (1914), the Court explains that the Plaintiff “alleged that the defendant after the making of the contract deeded the property to the other defendants and refused to carry out its contract with the plaintiff.” Id. at 324. Indeed, Plaintiff itself submits a damning quote from Muck on page 7 of its opposition, wherein Plaintiff cites “a court in equity in an action to compel specific performance…” Plaintiff completely ignores that the word “compel” implies that a party is refusing to abide by (or has breached) a contract. In other words, the Court in Muck made clear that there was an allegation of a breach of contract by the seller. Somehow, though, Plaintiff cites Muck for the opposite proposition: that Plaintiff need not allege a breach. The same is simply not true. 13. It is true that Scher v. Yeshivath Makowa Corp., 54 A.D.3d 839, 864 N.Y.S.2d 113 (2nd Dept. 2008) (“Scher I”) does not mention the words “breach of contract,” but it is also equally true that Scher I was not a motion to dismiss for failure to state a cause of action. Instead, Scher I 4 of 6 FILED: NEW YORK COUNTY CLERK 05/24/2017 05/04/2017 01:41 03:32 PM INDEX NO. 652804/2017 152021/2017 NYSCEF DOC. NO. 13 20 RECEIVED NYSCEF: 05/24/2017 05/04/2017 is an appeal from a judgment on liability in favor of Plaintiff. It is quite obvious that a case involving the propriety of a judgment would not address whether a plaintiff states a cause of action as that matter would have been resolved much earlier in the pleading stage. Even still, Scher I is not persuasive because Plaintiff failed to do its homework before citing Scher I. 14. A separate order from the same case proves that Scher is a case for breach of contract. In Scher v. Yeshivath Makowa Corp., 20 A.D.3d 470, 799 N.Y.S.2d 106 (2nd Dept. 2005) (“Scher II”), the Court notes in its very first sentence that it is “an action for specific performance of a contract for the sale of real property or, alternatively, to recover damages for breach of contract.” Id at 471. Plaintiff, of course, forgot to cite Scher II. 15. As this Court can plainly see from Church of God, Much and Scher I and II, Plaintiff cannot maintain the instant action for specific performance, which is a remedy, without a breach of contract. Here, no breach is alleged because none exists. Accordingly, the instant action should be dismissed. B. Plaintiff Must Allege It Is Ready, Willing and Able to Close 16. A plaintiff seeking specific performance must “show that it was ready and able to perform its own contractual undertakings on the closing date.” Huntington Min. Holdings, Inc. v. Cottontail Plaza, Inc., 60 N.Y.2d 997, 998, 459 N.E.2d 492, 492 (1983). Here, Plaintiff disagrees with that well established concept without providing any basis for its position. 17. Plaintiff argues that specific performance cases involving religious corporations need not allege that the Plaintiff is ready, willing and able to close. Plaintiff’s cites are, once again, not on point. Plaintiff fails to point to any precedent holding that an action for specific performance involving a religious corporation has different pleading requirements than an ordinary specific performance action. Instead, Plaintiff inaccurately argues that various cases prove Plaintiff’s point 5 of 6 FILED: NEW YORK COUNTY CLERK 05/24/2017 05/04/2017 01:41 03:32 PM INDEX NO. 652804/2017 152021/2017 NYSCEF DOC. NO. 13 20 RECEIVED NYSCEF: 05/24/2017 05/04/2017 by omission (i.e. that because they do not mention being ready, willing able means that it must not be alleged). 18. Plaintiff, once again, has makes up its own law without any authority. Indeed, cases do discuss the concept of “ready, willing and able” in the context of religious corporations. See, e.g., Vista Developers Corp. v. Bd. of Managers of Diocesan Missionary & Church Extensions Soc'y of Protestant Episcopal Church in Diocese of N.Y., 135 A.D.3d 559, 561, 25 N.Y.S.3d 73, 75 (2nd Dept. 2016.), leave to appeal denied sub nom. Vista Developers Corp. v. Bd. of Managers of Diocesan Missionary & Church Extensions Soc'y of Protestant Episcopal Church in the Diocese of N.Y., 27 N.Y.3d 906, 56 N.E.3d 899 (2016). 19. Nor does Plaintiff show that it is ready willing and able to close. Notably, while Plaintiff argues that it made a downpayment, Plaintiff does not argue that it has the balance of the purchase price available to close. Plaintiff is clearly not ready, willing and able to close if it does not have the funds to do so. See, Goller Place Corp. v. Cacase, 251 A.D.2d 287, 288, 672 N.Y.S.2d 923, 923–24 (2nd Dept. 1998) (“Here, the plaintiff… submitted no documentation or other proof to substantiate his assertion that he had the funds necessary to purchase the property and thus, he is unable to prove that he was ready, willing, and able to close the sale as a matter of law”). 20. Accordingly, Plaintiff’s Complaint must be dismissed on this ground as well. WHEREFORE, it is respectfully requested that this Court grant the instant motion in its entirety and dismiss the instant action. Dated: New York, New York May 4, 2017 /s/ Steven A. Weg Steven A. Weg 6 of 6