Preview
i 04 DV INDEX NO. 508311/2013
UD) OUN 08
_ NYSCEF BOC. NO. 9 RECEIVED NYSCEF 08/25/2014
i
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No.:508311/13
YAN KHANKIN and YEVEGENIYA KHANKIN,
AMENDED
ANSWER AND
COUNTERCLAIM
Plaintiffs,
—against—
MAYYA DOBROVA, ALEKSANDR GORBENKO,
“JOHN DOE #1" through "JOHN DOE #10", the
last ten names being fictitious and unknown to the
Plaintiffs, the person or parties intended being the
person or parties, if any, having or claiming
an interest in or lien upon the real property described
in the complaint,
Defendant(s)/Respondent(s).
Defendant MAYA DOBROVA, by her attorneys, Naimark & Tannenbaum, as and
for her Answer to the Complaint of the Plaintiff states as follows:
1) Admits the allegations set forth in paragraph 1 to the extent that Defendant
MAYA DOBROVA is a fee owner of the property therein described.
2) Admits the allegations set forth in paragraph 2, except that the contract for
sale was entered into between Defendant MAYA DOBROVA along with ALEKSANDR'
GORBENKO, as sellers, and the Plaintiffs as purchasers.
3) Admits the allegations set forth in paragraphs 3, 7, 8, 10 and 11.
4) Denies the allegations set forth in paragraph 4 of the Complaint, but
admits that paragraph 8 of the rider of the contract contained a mortgage contingency
clause, the full terms of which are set forth in the aforesaid paragraph 8 of the rider to
the contract.
5) Denies knowledge and information sufficient to form a belief as to the
validity of the allegations set forth in paragraph 6 and 42.
6) Denies the allegations set forth in paragraphs 5, 9, 13, 14, 15, 16 and 17 of
the Complaint.
AS AND FOR A COUNTERCLAIM
7) That on or about October 4, 2013, Defendant MAYA DOBROVA and her
husband, ALEKSANDR GORBENKO, entered into a contract with the Plaintiffs to sell to
the Plaintiffs condominium premises 2308 Stuart Street, #2J, Brooklyn, New York
11229. A copy of the contract is annexed hereto as Exhibit "A".
8) That pursuant to the contract of sale, Plaintiffs agreed to purchase the
aforedescribed condominium for the sum of $373,500.00
9) That pursuant to the contract for sale, Plaintiffs made a down payment
towards their purchase in the sum of $41,500.00, which sum of money is presently
being held in escrow by Gabriella G. Volshteyn, PLLC.
10) That prior to entering into the contract for sale, Plaintiffs had obtained a
“pre-approval” with respect to the mortgage which they intended to obtain in order to
close on their purchase of the foregoing premises.
14) That paragraph 8 of the rider to the contract reads as follows:
Mortgage contingency. This contract is made upon the condition that, on
or before 45 days herein, a lending institution shall issue to Purchasers a
written commitment to make a conventional first mortgage loan on the
property in the principal amount of $333,000.00, for a term of 15/30 years
with monthly payments based on a 15/30 year payment schedule, and
bearing interest at the prevailing rate for such loans. Purchasers promptly
and diligently shall apply for the mortgage !oan, ans shall furnish all
information and documents requested by the lending institution.
Purchasers shall notify Sellers of the name and address of the lending
institution to which the application is made. Purchasers shall accept such
commitment when issued and shall comply with all the requirements
thereof. Such commitment shall be deemed properly issued not
withstanding any requirement that Purchasers sell their present home or
any other ordinary and usual conditions to be satisfied by Purchasers
prior to funding by the lender. Purchasers represent that there are no
judgments or tax liens against them, and that they have not been
adjudicated bankrupt.
12) That on or about November 20, 2013, Plaintiffs, by their attorneys, notified
Defendant's real estate attorney, Gabriella G. Volshteyn, Esq., that his client's mortgage
application had been denied and requested the return of the down payment.
13) That Plaintiffs counsel provided to Ms. Volshteyn a mortgage denial
issued by Wells Fargo Bank dated November 21, 2013. A copy of same is annexed
hereto as Exhibit "B".
14) That the aforedescribed denial of mortgage stated that "your credit score
on November 4, 2013 was 744."
15) That at no point in time was the denial of mortgage allegedly issued to
ae
Plaintiff YAN KHANKIN ever provided to Gabriella Volshteyn, Esq.
16) That, upon information and belief, Plaintiffs breached the aforedescribed
contract for sale dated October 4, 2013 by failing to make a due, diligent and timely
application for the mortgage as required by the contract for sale.
17) That, upon information belief, Plaintiffs failed to provide, all "information
and documents requested by the lending institution" in order to qualify for the
mortgage.
18) That had the Plaintiffs timely and diligently applied for the mortgage, the
mortgage application would in fact have been approved.
19) That, upon information and belief, Plaintiffs submitted more than one
mortgage application to the proposed mortgagee, Wells Fargo Bank, N.A.
20) That, upon information and belief, subsequent to the filing of their initial
mortgage application the Plaintiffs changed their mind and elected not to proceed with
their purchase of the subject property for reasons having nothing whatsoever to do
with their ability to obtain a mortgage.
21) That, upon information and belief, the Plaintiffs ultimately provided
information to Wells Fargo Bank, N.A., which was incorrect and or incomplete so as to
assure that Wells Fargo would issue a denial of mortgage.
22) That had the Plaintiffs duly and properly applied for a mortgage in a timely
fashion, and had the Plaintiffs provided all information and proof of income required of
them by Wells Fargo Bank, N.A., their mortgage application would in fact have been
approved.
23) That as a consequence of the Plaintiffs failure to make due, diligent and
proper application for a mortgage, the Defendant's herein sustained monetary
damages in the amount of the down payment, to wit $41,500.00.
24) That in reliance upon the Plaintiffs having been pre-approved for a
mortgage, and in further reliance upon the Plaintiffs proceeding with due diligence to
obtain the mortgage, Defendant and ALEX GORBENKO entered into a contract to
purchase a parcel of real property, which contract was contingent upon the sale of the
subject condominium.
25) That as a consequence of the fraud and malfeasance of the Plaintiffs in
securing a denial of mortgage, when in fact they could have secured a mortgage
commitment, Defendant and ALEX GORBENKO were compelled to cancel their
contract to purchase a parcel of real property.
26). That as a consequence of the fraud and malfeasance of the Plaintiffs in
securing a denial of mortgage, Defendant and ALEX GORBENKO were compelled to
emove their condominium from the market for sale.
27) That as a consequence thereof, Defendant and ALEX GORBENKO lost the
ability to market their cooperative apartment to other prospective purchasers
28) That as a consequence of all of the foregoing, Defendant and ALEX
GORBENKO are entitled to retain the down payment which Plaintiffs made with respect
to their purchase of the subject condominium.
WHEREFORE, Defendant demands judgment dismissing the Complaint,
and further demands judgment on her Counterclaim in the sum of $41,500.00, together
with the costs, disbursements and attorney's fees of this action
Yours,
oo etc
ELIOT TANNENBAUM, ESQ.
NAIMARK & TANNENBAUM
Attorney for Defendant
169-95 137" Avenue
Jamaica, NY 11434
718-528-3700
TO: YEVGENY TSYNGAUZ, ESQ.
TSYNGAUZ & ASSOCIATES, P.C.
Attorney for Plaintiff
18 West 21* Street, 3% Floor
New York, NY 10010
212-337-9770
|:/DOBROVA--AMENDED ANS & COUNTERCLAIM
\ EXHIBIT A
Contract of Sale-— Condominium Unit
1
Agreement made as of August Z
nin the ‘year 2013 between
residing at
Mayya Dobrova anel Al eksande Corpenko YA
2308 Stuart Street- Apt 2, Brookl:ly, NY
(“Seller”) and
Yan Khankdn avd Yevgeny Chant
residing at 1535 East 14 Street Brooklyn, NY
Purchaser”)
LU + Seller agrees to sell and convey, and Purchaser agrees to purchase, Unit No.
25 Unit in the building (“Building”) known as Gerritsen Gardens Condominium Qad hareiug
CCondominium™) and located at 2308 Stuart Street, Brooklyn, NY together with , a
Percent undivided interest in the Common Elements, all upon and Space 27
subject to the terms and conditions set forth herein. The Unit shall be as designated in the YA
Declaration of Condominium ip (as the same may be amended from time to
time, the “Declaration”) of theGeceitsew Gardews Couds recorded in Kings County, New
York or the By-Laws (as the same may be amended from time to time, the “By-Laws”) of
the Condominium.
ye
2. Personal Property: (a) The sale includes all of Seller’s right, title and interest,
ifany, in and to:
(i) the (1) refrigerator, (1) stove, (1) dishwashers, (1) microwave cabinets and
counters, standard lighting fixtures, plumbing fixtures, and articles of property and
fixtures attached to or appurtenant to the Unit, except those listed in subpara. 2(b), all of
which included property and fixtures are represented to be owned by Seller, free and
Yk
UC
clear of all liens and encumbrances other than those encumbrances (“Permitted
Exceptions”) set forth on Schedule A annexed hereto and made a part hereof (strike out
inapplicable items); and AaAKCs / Bae RhLe th Ki¥che sand
(ti) All in“AS IS” condition 3 Stools
winhouw Fheatl ments iTwashee ® Abyer
(b) Excluded from this sale are:
@ furniture, furnishings and TV’s (other than as specifically provided in this
Contract);
Gi) lighting — ~ tobe Replaced w/otanderd bullden's Hird ees
YK
st
(©) The property referred to in sebpara. 2(a)() and (ii) may not be purchased if title to the
Unit is not conveyed hereunder.
Purehase Price: (a) The purchase price (“Purchase Price”) is $415,000.00
Ye
3.
payable as follows:
@) $41,500.00 (“Downpayment”) on the signing of this Contract by check subject to
collection, the receipt of which is hereby acknowledged, to be held in escrow pursuant to
para. 16; and
(ii) $373,500.00 constituting the balance of the Purchase Price, by certified check of
Purchaser or official bank check (except as otherwise provided in this Contract) on the
ceneetnst we delivery of the deed as hereinafter provided.
(b) All checks in payment of the Purchasé Price shall represent United States currency
and be drawn on or issued by a bank or trust company authorized to accept deposits in
New York State. All checks in payment of the Downpayment shall be payable to the
order of Escrowee (as hereinafter defined). Further, all checks in payment of the balance
of the Purchase Price shall be payable to the order of either (i) Seller (or as Seller
otherwise directs pursuant to subpara. 6(a)(ix) or subpara. 19(6)) or (ii) Purchaser,
provided that Purchaser is a natural person or persons and the same is endorsed to the
order of Seller (or as Seller otherwise directs pursuant to subpara. 6(a)(ix) or subpara.
19(b)) in the presence of Seller at the Closing (as hereinafter defined).
© Except for the Downpayment and checks aggregating not more than one-half of one
percent of the Purchase Price, including payment for closing adjustments, all checks
delivered by Purchaser shall be certified or official bank checks as hereinabove provided,
4. Closing of Title: The closing documents referred to in para. 6 shall be
delivered, and payment of the balance of the Purchase Price shall be made, at the closing
of title (“Closing”), to be held on or about 60 days herein at 10:00 am, at the offices of
Seller’s attorney or at the office of Purchaser’s Tending institution or its counsel;
provided, however, that such office is located in either the City or County in which either
(@) Seller’s attomey maintains an office or (b) the Unit is located.
5. Representations, Warranties and Covenants: Seller Tepresents, warrants and
covenants that:
(@)__ Seller is the sole owner of the Unit and the property referred to in subpara, 2(a), and
Seller has the full right, power and authority to sell, convey and transfer the same:
@) The common charges (excluding separately billed utility charges) for the Unit on
the date hereof are $188.00
©) Seller has not received any written notice of an intended assessment or increase in
common charges not reflected in subpara. 5(b). Purchaser acknowledges that it will not
have the right to cancel this Contract in the event of the imposition of any assessment or
increase in common charges after the date hereof of which Seller has not heretofore
received written notice;
@ The real estate taxes for the Unit is $1,090.85/quarter
© Seller is not a “sponsor” or a nominee of a “sponsor” under any plan of
condominium organization affecting the Unit;
© All refrigerators, freezers, ranges, dishwashers, washing machines, clothes dryers
and air conditioning equipment included in this sale will be in working order at the time
of Closing;
@) If a-copy is attached to this Contract, the copy of the Certificate ofOccupancy
covering the Unit is a true and correct copy; and
@) Seller is not a “foreign person” as defined in para. 18. (if inapplicable, delete and
provide for compliance with Code Withholding Section, as defined in para. 18.)
6. Closing Documents: (a) At the Closing, Seller shall deliver to Purchaser the
following:
@ Bargain and sale deed with covenant against grantor’s acts (“Deed”),
complying with RPL § 339-0 and containing the covenant required by LL § 13(5),
conveying to Purchaser title to the unit, together with its undivided interest in the
Common Elements (as such term is defined in the Declaration and which term shall be
deemed to include Seller’s right, title and interest in any limited common elements
attributable to or used in connection with the Unit) appurtenant thereto, free and clear of
all liens and encumbrances other than Permitted Exceptions. The Deed shall be executed
and acknowledged by Seller and, if requested by the Condominium, executed and
acknowledged by Purchaser, in proper statutory form for recording;
Gi) Ifa corporation and if required pursuant to BCL § 909, Seller shall deliver to
Purchaser (1) a resolution of its board of directors authorizing the delivery of the Deed
and (2) a certificate executed by an officer of such corporation certifying as to the
adoption of such resolution and setting forth facts demonstrating that the delivery of the
Deed is in conformity with the requirements of BCL § 909. The Deed shall also contain a
recital sufficient to establish compliance with such law;
iii) If applicable, a waiver of right of first refusal of the board of managers of the
Condominium (“Board”) in accordance with pare. 8;
iv) A statement by the Condominium or its managing agent that the common
charges and any assessments then due and payable to the Condominium have been paid
to the date of the Closing;
(¥) Ali keys to the doors of, and mailbox for, the Unit;
(vi) Such affidavits and/or other evidence as the title company (“Title Company")
from which Purchaser has ordered a title insurance resort and which is authorized to do
business in New York State shall reasonably require in order to omit from its title
insurance policy all exceptions for judgments, bankruptcies or other returns against Seller
and persons or entities whose names are the same as or are similar to Seller’s name;
(vii) Official New York State Real Property Transfer Gains Tax Tentative
Assessment and Return (or, if applicable, Official Statement of No Tax Due) duly
completed by the New York State Department of Taxation and Finance (or, if applicable,
a duly executed and acknowledged affidavit of Seller in form required pursuant to the
Gains Tax Law (as hereinafter defined) claiming exemption therefrom;
(iii) If the Unit is located in the City of New York, a New York City Real
Property Transfer Tax Return prepared, executed and acknowledged by Seller in. proper
form for submission;
(ix) Checks in payment of all applicable real. property transfer taxes and any New
York State Real Property Transfer Gains Tax (“Gains Tax”) due in connection with the
sale, which checks shall be certified or official bank checks, if required by the taxing
authority and shall be drawn on any banking institution described in subpara. 3(b). In liew
of delivery of such checks, Seller shall have the right, upon reasonable notice to
Purchaser, to cause Purchaser to deliver said checks at the Closing and to credit
Purchaser with the amount thereof against the balance of the Purchase Price. Selier shall
pay the additional transfer taxes and Gains Taxes, if any, payable after the Closing by
reason of the conveyance of the Unit, which obligation shall survive the Closing; and
{x) Certification that Seller is not a foreign person pursuant to para. 18. (If
inapplicable, delete and provide for compliance with Code Section, as defined in para. Vin
18) (x1) Oeigtual Condominium Often iw Flaw
) At the Closing, Purchaser shall deliver to Seller the following:
@ Checks in payment of the balance of the Purchase Price in accordance with
subpara. 3(b);
i) If required by the Declaration or By-Laws, power of attomey to the Board,
prepared by Seller, in the form required by the Condominium. The power of attorney
shall be executed and acknowledged by Purchaser and, after being recorded, shall be sent
to the Condominium;
ii) If the Unit is located in the City of New York, a New York City Real Property
Transfer Tax Retum executed and acknowledged by Purchaser and an Affidavit in Liew
of Registration pursuant to New York Multiple Dwelling Law, each in proper form for
submission; and
(iv) If required, New York State Equalization Retum executed and acknowledged by
Purchaser in proper form for submission.
(©) _Itis a condition of Purchaser's obligation to close title hereunder that:
@) Ail notes or notices of violations of law or governmental orders, ordinances or
requirements affecting the Unit and noted or issued by any governmental department,
agency or bureau having jurisdiction which were noted or issued on or prior to the date
hereof shall have been cured by Seller;
(ii) Any written notice to Seller from the Condominium (or its duly authorized
representative) that the Unit is in violation of the Declaration, By-Laws or rules and
regulations of the Condominium shall have been cured; and
Gii) The Condominium is a valid condominium created pursuant to RPL Art. 9-B
and the Title Company will so insure.
7. Closing Adjustments: (a) The following adjustments shall be made as of 11:59
P.M. of the day before the Closing:
(i) Real estate taxes and water charges and sewer rents, if separately assessed, on the
basis of the fiscal period for which assessed, except that if there is a water meter with
respect to the Unit, apportionment shall be based on the last available reading, subject to
adjustment after the Closing, promptly after the next reading is available; provided,
however, that in the event real estate taxes have not, as of the date of Closing, been
separately assessed to the Unit, real estate taxes shall be apportioned. on the same basis as
provided in the Declaration or By-Laws or, in the absence of such provision based upon
the Unit's percentage interest in the Common Elements.
Gi) Common charges of the Condominium; and
Gii) If fuel is separately stored with respect to the Unit only, the value of fuel stored
with respect to the Unit af the price then charged by Seller’s supplier (as determined by a
ietter or certificate to be obtained by Seller from such supplier), including any sales taxes.
0) If at the time of Closing the Unit is affected by an assessment which is or may
become payable in installments, then, for the purposes of this Contract, only the unpaid
installments which are then duc shall be considered due and are to be paid by Seller at the
Closing. All subsequent installments at the time of Closing shall be the obligation of
Purchaser.
©) Any errors or omissions in computing closing adjustments at the time of Closing
shall be corrected. This subpara. 7(c) shall survive the Closing.
{a) If the Unit is iocated in the City of New York, the “customs in respect to title
closings” recommended by The Real Estate Board of New York, Inc., as amended and in
effect on the date of Closing, shall apply to the adjustments and other matters therein
mentioned, except as otherwise provided herein.
8. Right of First Refusal: If so provided in the Declaration or By-Laws, this sale
is subject to and conditioned upon the waiver of a right of first refusal to purchase the
Unit held by the Condominium and exercisable by the Board. Seller agrees to give notice
promptly to the Board of the contemplated sale of the Unit to Purchaser, which notice
shall be given in accordance with the terms of the Declaration and By-Laws, and
Purchaser agrees to provide promptly all applications, information and references
reasonably requested by the Board. If the Board shall exercise such right of first refusal,
Seller shall promptly refund to purchaser the Downpayment (which term, for all purposes
of this Contract, shall be deemed to include interest, if any, earned thereon) and upon the
making of such refund this Contract shall be deemed cancelled and of no further force or
effect and neither party shall have any further tights against, or obligations or liabilities
to, the other by reason of this Contract. If the Board shall fail to exercise such right of
first refusal within the time and in the manner provided for in the Declaration or By-Laws
or shall declare in writing its intention not to exercise such right of first refusal (a copy of
which writing shall be delivered to Purchaser promptly following receipt thereof), the
parties hereto shali proceed with this sale in accordance with the provisions of this
Contract.
9. Processing Fee: Purchaser shall, at the Closing, pay all fees and charges payable
to the Condominium (and/or its managing agent) in connection with this sale, including,
without limitation, any processing fee, the legal fees, if any, of the Condominium’s
attomey in connection with this sale and, unless otherwise agreed to by Seller and
Purchaser in writing, all “flip-taxecy” transfer or entrance fees or similar charges, if any,
payable to or for the Condominium or otherwise for the benefit of the Condominium
owners, whish-arise- by-reaserofthissale. LOO Cae applicebce + Pu ohare
10. No Other Representations: Purchaser has examined and is satisfied with the
Declaration, By-Laws and rules and regulations of the Condominium, or has waived the
Ye
examination thereof. Purchaser has inspected the Unit, its fixtures, appliances and
equipment and the personal property, if any, included in this sale, as well as the Common
Elements of the Condominium, and knows the condition thereof and, subject to subpara.
5(f), agrees to accept the same “as is,” i.e., in the condition they are in on the date hereof,
We
subject to normal use, wear and tear between the date hereof and the Closing. Purchaser
has examined or waived examination of the last audited financial statements of the
Condominium, and has considered or waived consideration of all other matters pertaining
to this Contract and to the purchase to be made hereunder, and does not rely on any
representations made by any broker or by Seller or anyone acting or purporting to act on
behalf of Seller as to any matters which might influence or affect the. decision to execute
this Contractor to buy the Unit, or said personal property, except those representations
and werranties which are specifically set forth in this Contract.
11. Possession: Seller shall, prior to the Closing, remove from the Unit all furniture,
furnishings and other personal property not included in this sale, shall repair any damage
caused by such removal, arid shall deliver exclusive possession of the Unit at the Closing,
vacant, broom-clean and free of tenancies or other rights of use or possession.
12. Access: Seller shall permit Purchaser and its architect, decorator or other
authorized persons to have the right of access to the Unit between the date of hereof and
the Closing for the purpose of inspecting the same and taking measurements, at
teasonable times and upon reasonable prior notice to Seller (by telephone or otherwise).
Further, Purchaser shall have the right to inspect the Unit at a reasonable time during the
24-hour period immediately preceding the Closing.
13. Defaults and Remedies: (a) If Purchaser defaults hereunder, Seller’s sole
remedy shall be to retain the Downpayment as liquidated damages, it being agreed that
Seller’s damages in case of Purchaser's default might be impossible to ascertain and that
the .Downpayment constitutes a fair and reasonable amount of damages under the
circumstances and is not a penalty.
(b) If Seller defaults hereunder, Purchaser shall have such remedies as Purchaser shall be
entitled to at law or in equity, including, but not limited to, specific performance.
44. Notices: Any notice, request or other communication (“Notice”) given or made
hereunder (except for the notice required by para. 12), shall be in writing and either (a)
sent by any of the parties hereto or their respective attorneys, by registered or certified
mail, return receipt requested, postage prepaid, or (b) delivered in person or by overnight
courier, with receipt acknowledged, to the address given at the beginning of this Contract
for the party to whom the Notice is to be given, or to such other address for such party as
said party shall hereafter designate by Notice given to the other party pursuant to this
para. 14, Each Notice mailed shall be deemed given on the third business day following
the date of mailing the same and each Notice delivered in person or by overnight courier
shall be deemed given when delivered.
15, Purchaser’s Lien: The Downpayment and all other sums paid on account of this
Contract and the reasonable expenses of the examination of title to, and departmental
violation searches in respect of, the Unit are hereby made a lien upon the Unit, but such
lien shall not continue after default by Purchaser hereunder.
16. Downpayment in Escrow: (a) Seller’s attomey (“Escrowee™) shall hold the
proceeds of the Downpayment in escrow in a special bank account (or as otherwise
agreed in writing by Seller, Purchaser and Escrowee) until the Closing or sooner
termination of this Contract and shall pay over or apply such proceeds in accordance with
the terms of this para. 16. Escrowee need not hold such proceeds in an interest-bearing
account, but if any interest is earned thereon, such interest shall be paid to the same party
entitled to the escrowed proceeds, and the party receiving such interest shall pay any
income taxes thereon. The. social security numbers of the parties shall be furnished to
Escrowee upon request. At the Closing, such proceeds and the interest thereon, if any,
shall be paid by Escrowee to Seller. If for any reason the Closing does not occur and
either party makes a written demand upon Escrowee for payment of such proceeds and
the interest thereon, if any, Escrowee shall give written notice to the other party of such
demand, If Escrowee does not receive a written objection from such other party to the
proposed payment within 10 business days after the giving of such notice, Escrowee is
hereby authorized to make such payment. If Escrowee does receive such written
objection within such 10-day period or if for any other reason Escrowee in good faith
shall elect not to make such payment, Escrowee shall continue to hold such amount until
otherwise directed by written instructions from the parties to this Contract or a final
judgment of a court. However, Escrowee shall have the right at any time to deposit such
proceeds and interest thereon, if any, with the Clerk of the Supreme Court of the county
in which the Unit is located. Escrowee shall give written notice of such deposit to Seller
and Purchaser. Upon such deposit or other disbursement in accordance with the terms of
this para. 16, Escrowee shall be relieved and discharged of all further obligations and
responsibilities hereunder.
{b) The parties acknowledge that Escrowee is acting solely as a stakeholder at their
request and for their convenience, that Escrowee shall not be deemed to be the agent of
either party and that Escrowee shall not be liable to either party for any act or omission
in bad faith or in willful disregard
on its part unless taken or suffered of this Contract or
involving gross negligence. Seller and Purchaser jointly and severally indemnify and hold
Escrowee hamiless from and against all costs, claims and expenses (including reasonable
attomeys’ fees) incurred in connection with the performance of Escrowee’s duties
hereunder, except with respect to actions or omissions taken or suffered by Escrowee in
bad faith or in willful disregard of this Contract or involving gross negligence on the part
of Escrowee.
{c) Escrowee may act or refrain from action in respect of any matter referred to herein in
full reliance upon and with the advice of counsel which may be selected by it (including
any member of its firm) and shall be fully protected ie so acting or refraining from action
upon the advice of such counsel.
(d) Escrowee has acknowledged agreement to the provisions of this para. 16 by signing in
the place indicated on the signature page of this Contract.
{e) Escrowee or any member of its firm shall be permitted to act as counsel for Seller in
any dispute as to the disbursement of the Downpayment or any other dispute between the
parties whether or not Escrowee is in possession of the Downpayment and continues to
act as Escrowee.
17. New York State Gains Tax: (e} Seller and Purchaser agree to comply in a
timely manner with the requirements of article 31-B of the Tax Law and the regulations
applicable thereto, as the same from time to time may be amended (collectively, the
“Gains Tax Law”). Purchaser agrees to deliver to Seller a duly executed and
acknowledged Transferee Questionnaire simultaneously with the execution of this
Contract or within 5 business days after subsequent written request from Seller or Seller’s
attorney. At the Closing Seller shall deliver (i) an Official Statement of No Tax Due or
Gi) an Official Tentative Assessment and Return accompanied by a certified or official
bank check drawn on any banking institution described in subpara. 3(b), payable to the
order of the State Tax Commission, in the amount of the tax shown to be due thereon, or
Gil) if applicable, a duly executed and acknowledged affidavit in form permitted under
the Gains Tax Law claiming exemption therefrom.
(by Seller agrees (i) to pay promptly any tax due under the Gains Tax Law and interest
and penalties thereon, if any, which may be assessed or due after the Closing, (ii) to
indemnify and save Purchaser harmless from and against any of the foregoing and any
cost, claim and expense (including reasonable attomeys’ fees) incurred by Purchaser by
reason of the nonpayment thereof, and (iii) to make any other payments and execute,
acknowledge and deliver such further documents as may be necessary to comply with the
Gains Tax Law.
(c) The obligations rising pursuant to this para. 17 shall survive the Closing.
18. FIRPTA: Seller represents and werrants to Purchaser that Seller is not a “foreign
person” as defined in IRC § 1445, as amended, and the regulations issued thereunder
(‘Code Withholding Section”). At the Closing Seller shall deliver to Purchaser a
certification stating that Seller is not a foreign person, which certification shall be in the
form then required by the Code Withholding Section. In the event Seller fails to deliver
the aforesaid certification or in the event that Purchaser is not entitled under the Code
Withholding Section to rely on such certification, Purchaser shall deduct and withhold
from the Purchase Price a sum equal to 10% thereof and shall at Closing remit the
withheld amount with
the required forms to the Intemal Revenue Service.
19. Title Report; Acceptable Title: (a) Purchaser shall, promptly after the date
hereof, order a title insurance report from the Title Company. Promptly after receipt of
the title report and thereafter of any continuations thereof and supplements thereto,
Purchaser shall forward a copy of each such report, continuation or supplement to the
attorney for Seller. Purchaser shall further notify Seller’s attomey of any other objections
to title not reflected in such title report of which Purchaser becomes aware following the
delivery of such report, reasonably promptly after becoming aware of such objections.
(6) Any unpaid taxes, assessments, water charges and sewer rents, together with the
interest and penalties thereon to a date not less than two days following the date of
Closing, and any other liens and encumbrances which Seller is obligated to pay and
discharge or which are against corporations, estates or other persons in the chain of title,
together with the cost of recording or filing any instruments necessary to discharge such
liens and encumbrances of record, may be paid out of the proceeds of the monies payable
at the Closing if Seller delivers to Purchaser at the Closing official bills for such taxes,
assessments, water charges, sewer rents, interest and penalties and instruments in
recordable form sufficient to discharge any other liens and encumbrances of record. Upon
request made a reasonable time before the Closing, Putchaser shall provide at the Closing
separate checks for the foregoing payable to the order of the holder of any such lien,
charge or encumbrance and otherwise complying with subpara. 3(b). If the Title
Company is willing to insure Purchaser that such charges, liens and encumbrances will
not be collected out‘of or enforced against the Unit and is willing to insure the lien of
Purchaser’s Institutional Lender (as hereinafter defined) free and clear of any such
charges, liens and encumbrances, then Seller shall have the right in lieu of payment and
discharge to deposit with the Title Company such funds or to give such assurances or to
pay such special or additional premiums as the Title Company may require in order to so
insure. In such case the charges, liens and encumbrances with respect to which the Title
Company bas agreed so to insure shall not be considered objections to title.
(©) Seller shall convey and Purchaser shall accept fee simple title to the Unit in
accordance with the terms of this Contract, subject only to: (@) the Permitted Exceptions
and (b) such other matters as (i) the Title Company or any other title insurer licensed to
do business by the State of New York shall be willing, without special or additional
premium, to omit as exceptions to coverage or to except with insurance against collection
out of or enforcement against the Unit and (ii) shall be accepted by any lender described
in RPL § 274-a (“Institutional Lender”) which has committed in writing to provide
mortgage financing to Purchaser for the purchase of the Unit (“Purchaser's Institutional
Lender), except that if such acceptance by Purchaser's Institutional Lender is
unreasonably withheld or delayed, such acceptance shall be deemed to have ‘been given
(@) Notwithstanding any contrary provisions in this Contract, express or implied, or any
contrary rule of law or custom, if Seller shall be unable to convey the Unit in accordance
with this Contract and if Purchaser elects not to complete this transaction without
abatement of the Purchase Price, the sole obligation and liability of Seller shall be to
refund the Downpayment to Purchaser, together with the reasonable cost of the
examination of title to, and departmental violation searches in respect of, the Unit, aid
upon the making of such refund and payment, this Contract shall be deemed cancelled
and of no further force or effect and neither party shall have any further rights against, or
obligations or liabilities to, the other by reason of this. Contract. However, nothing
contained in this subpara. 19(d) shall be construed to relieve Seller from liability due to a
willful default.
20. Risk of Loss; Casualty: (2) The risk of loss or damage to the Unit or the
petsonal property included in this sale, by fire or other casualty, until the earlier of the
Closing or possession of the Unit by Purchaser, is assumed by Seller, but without any
obligation on the part of Seller‘to repair or replace any such loss or damage unless Seller
elects to do so as hereinafter provided. Seller shall notify Purchaser of the occurrence of
any such loss or damage to the Unit or the personal property included in this sale within
10 days after such occusrence or by the date of Closing, whichever first occurs, and by
such notice shall state whether or not Seller elects to repair or restore the Unit and/or the
personal property, as the case may be. If Seller elects to make such repairs and
restorations, Seller’s notice shall set forth an adjourned date for the Closing, which shall
be not more than 60 days after the date of the giving of Seller's notice. If Seller either
does not elect to do so or, having elected to make such repairs and restorations, fails to
complete the same on or before said adjourned date for the Closing, Purchaser shall have
the following options:
(@ To declare this Contract cancelled and of no further force or effect and receive a
refund of the Downpayment in which event neither party shall thereafter have any further
rights against, or obligations or liabilities to, the other by reason of this Contract; or
Gi) To complete the purchase in accordance with this Contract without reduction in
the Purchase Price, except as provided in the next sentence. If Seller carries hazard
insurance covering such loss or damage, Seller shalt turn over to Purchaser at the Closing
the net proceeds actually collected by Seller under the provisions of such hazard
insurance policies to the extent that they are attributable to loss of or damage to any
perty included in this sale, less any sums theretofore expended by Seller in repairing
or replacing such loss or damage or in collecting such proceeds; and Seller shall assign
(without recourse 'to Seller) Seller’s right to receive any additional insurance proceeds
which are attributable to the loss of or damage to any property included in this sale.
(b) If Seller does not elect to make such repairs and restorations, Purchaser may exercise
the resulting option under (i) or (ii) of (@) above only by notice given to Seller within 10
s
days after receipt of Seller’s notice. If Seller elects to make such repairs and restoration
and fails to complete the same on or before the adjourned closing date, Purchaser may
exetcise either of the resulting options within 10 days after the adjourned closing date.
(c) In the event of any loss of or damage to the Common Elements which materially and
adversely affects access to or use of the Unit, arising after the date of this Contract but
prior to the Closing, Seller shall notify Purchaser of the occurrence thereof within 10
days after such occurrence or by the date of Closing, whichever occurs first, in which
event Purchaser shall have the following options:
(i) To complete the purchase in accordance with this Contract without reduction in
the Purchase Price; or
(ii) To adjoum the Closing until the first to occur of (1) completion of the repair and
restoration of the loss or damage to the point that there is no longer a materially adverse
effect on the access to or use of the Unit or (2) the 60th day after the date of the giving of
Seller’s aforesaid notice. In the event Purchaser elects to adjourn the Closing as aforesaid
and such loss or damage is not so repaired and restored within 60 days after the date of
the giving of Seller’s aforesaid notice, then Purchaser shall have the right either to (x)
complete the purchase in accordance with this Contract without reduction in the Purchase
Price or (y) declare this Contract cancelled and of no further force or effect and receive a
tefund of the Downpayment, in which latter event neither party shall thereafter have any
further rights against, or obligations or liabilities to, the other by reason of this Contract.
(d) In the event of any loss of or damage to the Common Elements which does not
materially and adversely affect access to or use of the Unit, Purchaser shall accept title to
the Unit in accordance with this Contract without abatement of the Purchase Price.
21. Internal Revenue Service Reporting Requirement: Each party shall execute,
acknowledge and deliver to the other party such instruments, and take such other actions,
as such other party may reasonably request in order to comply with IRC § 6045(e), as
amended, or any successor provision or any regulations promulgated pursuant thereto,
insofar as the same requires reporting of information in respect of real estate transactions.
The provisions of this para. 21 shall survive the Closing.
22. Broker: Seller and Purchaser tepresent and warrant to each other that the only
broker with whoin they have dealt in connection with this Contract and the transaction set
forth herein is Max & Associates Realty Corp and High Class Realty.
and that they know of no other broker who has claimed
or may have the right to claima
commission in connection with this transaction. The commission of such broker shall be
paid by Seller pursuant to separate agreement. If no broker is specified above, the parties
acknowledge that this Contract was brought about by direct negotiation between Seller
and Purchaser and each represents to the other that it knows of no broker entitled to a
commission in connection with this transaction, Seller and Purchaser shall indemnify and
defend each other against any costs, claims or expenses (including reasonable attorneys’
fees) arising out of the breach on their respective parts of any representation, warranty or
agreement contained in this para. 22. The provisions of this para. 22 shall survive the
Closing or, if the Closing does not occur, the termination of this Contract,
23. Mortgage Contingency: (Delete if inapplicable) The obligations of Purchaser
hereunder are conditioned upon issuance on or before 45 days herein of a written
commitment from any Institutional Lender pursuant to which such Institutional Lender
agrees to makea Joan to Purchaser, at Purchaser’s sole cost and expense, of not Jess than
$333,000.00 at an annual rate of interest not to exceed for a
Preview
i 04 DV INDEX NO. 508311/2013 UD) OUN 08 _ NYSCEF BOC. NO. 9 RECEIVED NYSCEF 08/25/2014 i SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No.:508311/13 YAN KHANKIN and YEVEGENIYA KHANKIN, AMENDED ANSWER AND COUNTERCLAIM Plaintiffs, —against— MAYYA DOBROVA, ALEKSANDR GORBENKO, “JOHN DOE #1" through "JOHN DOE #10", the last ten names being fictitious and unknown to the Plaintiffs, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the real property described in the complaint, Defendant(s)/Respondent(s). Defendant MAYA DOBROVA, by her attorneys, Naimark & Tannenbaum, as and for her Answer to the Complaint of the Plaintiff states as follows: 1) Admits the allegations set forth in paragraph 1 to the extent that Defendant MAYA DOBROVA is a fee owner of the property therein described. 2) Admits the allegations set forth in paragraph 2, except that the contract for sale was entered into between Defendant MAYA DOBROVA along with ALEKSANDR' GORBENKO, as sellers, and the Plaintiffs as purchasers. 3) Admits the allegations set forth in paragraphs 3, 7, 8, 10 and 11. 4) Denies the allegations set forth in paragraph 4 of the Complaint, but admits that paragraph 8 of the rider of the contract contained a mortgage contingency clause, the full terms of which are set forth in the aforesaid paragraph 8 of the rider to the contract. 5) Denies knowledge and information sufficient to form a belief as to the validity of the allegations set forth in paragraph 6 and 42. 6) Denies the allegations set forth in paragraphs 5, 9, 13, 14, 15, 16 and 17 of the Complaint. AS AND FOR A COUNTERCLAIM 7) That on or about October 4, 2013, Defendant MAYA DOBROVA and her husband, ALEKSANDR GORBENKO, entered into a contract with the Plaintiffs to sell to the Plaintiffs condominium premises 2308 Stuart Street, #2J, Brooklyn, New York 11229. A copy of the contract is annexed hereto as Exhibit "A". 8) That pursuant to the contract of sale, Plaintiffs agreed to purchase the aforedescribed condominium for the sum of $373,500.00 9) That pursuant to the contract for sale, Plaintiffs made a down payment towards their purchase in the sum of $41,500.00, which sum of money is presently being held in escrow by Gabriella G. Volshteyn, PLLC. 10) That prior to entering into the contract for sale, Plaintiffs had obtained a “pre-approval” with respect to the mortgage which they intended to obtain in order to close on their purchase of the foregoing premises. 14) That paragraph 8 of the rider to the contract reads as follows: Mortgage contingency. This contract is made upon the condition that, on or before 45 days herein, a lending institution shall issue to Purchasers a written commitment to make a conventional first mortgage loan on the property in the principal amount of $333,000.00, for a term of 15/30 years with monthly payments based on a 15/30 year payment schedule, and bearing interest at the prevailing rate for such loans. Purchasers promptly and diligently shall apply for the mortgage !oan, ans shall furnish all information and documents requested by the lending institution. Purchasers shall notify Sellers of the name and address of the lending institution to which the application is made. Purchasers shall accept such commitment when issued and shall comply with all the requirements thereof. Such commitment shall be deemed properly issued not withstanding any requirement that Purchasers sell their present home or any other ordinary and usual conditions to be satisfied by Purchasers prior to funding by the lender. Purchasers represent that there are no judgments or tax liens against them, and that they have not been adjudicated bankrupt. 12) That on or about November 20, 2013, Plaintiffs, by their attorneys, notified Defendant's real estate attorney, Gabriella G. Volshteyn, Esq., that his client's mortgage application had been denied and requested the return of the down payment. 13) That Plaintiffs counsel provided to Ms. Volshteyn a mortgage denial issued by Wells Fargo Bank dated November 21, 2013. A copy of same is annexed hereto as Exhibit "B". 14) That the aforedescribed denial of mortgage stated that "your credit score on November 4, 2013 was 744." 15) That at no point in time was the denial of mortgage allegedly issued to ae Plaintiff YAN KHANKIN ever provided to Gabriella Volshteyn, Esq. 16) That, upon information and belief, Plaintiffs breached the aforedescribed contract for sale dated October 4, 2013 by failing to make a due, diligent and timely application for the mortgage as required by the contract for sale. 17) That, upon information belief, Plaintiffs failed to provide, all "information and documents requested by the lending institution" in order to qualify for the mortgage. 18) That had the Plaintiffs timely and diligently applied for the mortgage, the mortgage application would in fact have been approved. 19) That, upon information and belief, Plaintiffs submitted more than one mortgage application to the proposed mortgagee, Wells Fargo Bank, N.A. 20) That, upon information and belief, subsequent to the filing of their initial mortgage application the Plaintiffs changed their mind and elected not to proceed with their purchase of the subject property for reasons having nothing whatsoever to do with their ability to obtain a mortgage. 21) That, upon information and belief, the Plaintiffs ultimately provided information to Wells Fargo Bank, N.A., which was incorrect and or incomplete so as to assure that Wells Fargo would issue a denial of mortgage. 22) That had the Plaintiffs duly and properly applied for a mortgage in a timely fashion, and had the Plaintiffs provided all information and proof of income required of them by Wells Fargo Bank, N.A., their mortgage application would in fact have been approved. 23) That as a consequence of the Plaintiffs failure to make due, diligent and proper application for a mortgage, the Defendant's herein sustained monetary damages in the amount of the down payment, to wit $41,500.00. 24) That in reliance upon the Plaintiffs having been pre-approved for a mortgage, and in further reliance upon the Plaintiffs proceeding with due diligence to obtain the mortgage, Defendant and ALEX GORBENKO entered into a contract to purchase a parcel of real property, which contract was contingent upon the sale of the subject condominium. 25) That as a consequence of the fraud and malfeasance of the Plaintiffs in securing a denial of mortgage, when in fact they could have secured a mortgage commitment, Defendant and ALEX GORBENKO were compelled to cancel their contract to purchase a parcel of real property. 26). That as a consequence of the fraud and malfeasance of the Plaintiffs in securing a denial of mortgage, Defendant and ALEX GORBENKO were compelled to emove their condominium from the market for sale. 27) That as a consequence thereof, Defendant and ALEX GORBENKO lost the ability to market their cooperative apartment to other prospective purchasers 28) That as a consequence of all of the foregoing, Defendant and ALEX GORBENKO are entitled to retain the down payment which Plaintiffs made with respect to their purchase of the subject condominium. WHEREFORE, Defendant demands judgment dismissing the Complaint, and further demands judgment on her Counterclaim in the sum of $41,500.00, together with the costs, disbursements and attorney's fees of this action Yours, oo etc ELIOT TANNENBAUM, ESQ. NAIMARK & TANNENBAUM Attorney for Defendant 169-95 137" Avenue Jamaica, NY 11434 718-528-3700 TO: YEVGENY TSYNGAUZ, ESQ. TSYNGAUZ & ASSOCIATES, P.C. Attorney for Plaintiff 18 West 21* Street, 3% Floor New York, NY 10010 212-337-9770 |:/DOBROVA--AMENDED ANS & COUNTERCLAIM \ EXHIBIT A Contract of Sale-— Condominium Unit 1 Agreement made as of August Z nin the ‘year 2013 between residing at Mayya Dobrova anel Al eksande Corpenko YA 2308 Stuart Street- Apt 2, Brookl:ly, NY (“Seller”) and Yan Khankdn avd Yevgeny Chant residing at 1535 East 14 Street Brooklyn, NY Purchaser”) LU + Seller agrees to sell and convey, and Purchaser agrees to purchase, Unit No. 25 Unit in the building (“Building”) known as Gerritsen Gardens Condominium Qad hareiug CCondominium™) and located at 2308 Stuart Street, Brooklyn, NY together with , a Percent undivided interest in the Common Elements, all upon and Space 27 subject to the terms and conditions set forth herein. The Unit shall be as designated in the YA Declaration of Condominium ip (as the same may be amended from time to time, the “Declaration”) of theGeceitsew Gardews Couds recorded in Kings County, New York or the By-Laws (as the same may be amended from time to time, the “By-Laws”) of the Condominium. ye 2. Personal Property: (a) The sale includes all of Seller’s right, title and interest, ifany, in and to: (i) the (1) refrigerator, (1) stove, (1) dishwashers, (1) microwave cabinets and counters, standard lighting fixtures, plumbing fixtures, and articles of property and fixtures attached to or appurtenant to the Unit, except those listed in subpara. 2(b), all of which included property and fixtures are represented to be owned by Seller, free and Yk UC clear of all liens and encumbrances other than those encumbrances (“Permitted Exceptions”) set forth on Schedule A annexed hereto and made a part hereof (strike out inapplicable items); and AaAKCs / Bae RhLe th Ki¥che sand (ti) All in“AS IS” condition 3 Stools winhouw Fheatl ments iTwashee ® Abyer (b) Excluded from this sale are: @ furniture, furnishings and TV’s (other than as specifically provided in this Contract); Gi) lighting — ~ tobe Replaced w/otanderd bullden's Hird ees YK st (©) The property referred to in sebpara. 2(a)() and (ii) may not be purchased if title to the Unit is not conveyed hereunder. Purehase Price: (a) The purchase price (“Purchase Price”) is $415,000.00 Ye 3. payable as follows: @) $41,500.00 (“Downpayment”) on the signing of this Contract by check subject to collection, the receipt of which is hereby acknowledged, to be held in escrow pursuant to para. 16; and (ii) $373,500.00 constituting the balance of the Purchase Price, by certified check of Purchaser or official bank check (except as otherwise provided in this Contract) on the ceneetnst we delivery of the deed as hereinafter provided. (b) All checks in payment of the Purchasé Price shall represent United States currency and be drawn on or issued by a bank or trust company authorized to accept deposits in New York State. All checks in payment of the Downpayment shall be payable to the order of Escrowee (as hereinafter defined). Further, all checks in payment of the balance of the Purchase Price shall be payable to the order of either (i) Seller (or as Seller otherwise directs pursuant to subpara. 6(a)(ix) or subpara. 19(6)) or (ii) Purchaser, provided that Purchaser is a natural person or persons and the same is endorsed to the order of Seller (or as Seller otherwise directs pursuant to subpara. 6(a)(ix) or subpara. 19(b)) in the presence of Seller at the Closing (as hereinafter defined). © Except for the Downpayment and checks aggregating not more than one-half of one percent of the Purchase Price, including payment for closing adjustments, all checks delivered by Purchaser shall be certified or official bank checks as hereinabove provided, 4. Closing of Title: The closing documents referred to in para. 6 shall be delivered, and payment of the balance of the Purchase Price shall be made, at the closing of title (“Closing”), to be held on or about 60 days herein at 10:00 am, at the offices of Seller’s attorney or at the office of Purchaser’s Tending institution or its counsel; provided, however, that such office is located in either the City or County in which either (@) Seller’s attomey maintains an office or (b) the Unit is located. 5. Representations, Warranties and Covenants: Seller Tepresents, warrants and covenants that: (@)__ Seller is the sole owner of the Unit and the property referred to in subpara, 2(a), and Seller has the full right, power and authority to sell, convey and transfer the same: @) The common charges (excluding separately billed utility charges) for the Unit on the date hereof are $188.00 ©) Seller has not received any written notice of an intended assessment or increase in common charges not reflected in subpara. 5(b). Purchaser acknowledges that it will not have the right to cancel this Contract in the event of the imposition of any assessment or increase in common charges after the date hereof of which Seller has not heretofore received written notice; @ The real estate taxes for the Unit is $1,090.85/quarter © Seller is not a “sponsor” or a nominee of a “sponsor” under any plan of condominium organization affecting the Unit; © All refrigerators, freezers, ranges, dishwashers, washing machines, clothes dryers and air conditioning equipment included in this sale will be in working order at the time of Closing; @) If a-copy is attached to this Contract, the copy of the Certificate ofOccupancy covering the Unit is a true and correct copy; and @) Seller is not a “foreign person” as defined in para. 18. (if inapplicable, delete and provide for compliance with Code Withholding Section, as defined in para. 18.) 6. Closing Documents: (a) At the Closing, Seller shall deliver to Purchaser the following: @ Bargain and sale deed with covenant against grantor’s acts (“Deed”), complying with RPL § 339-0 and containing the covenant required by LL § 13(5), conveying to Purchaser title to the unit, together with its undivided interest in the Common Elements (as such term is defined in the Declaration and which term shall be deemed to include Seller’s right, title and interest in any limited common elements attributable to or used in connection with the Unit) appurtenant thereto, free and clear of all liens and encumbrances other than Permitted Exceptions. The Deed shall be executed and acknowledged by Seller and, if requested by the Condominium, executed and acknowledged by Purchaser, in proper statutory form for recording; Gi) Ifa corporation and if required pursuant to BCL § 909, Seller shall deliver to Purchaser (1) a resolution of its board of directors authorizing the delivery of the Deed and (2) a certificate executed by an officer of such corporation certifying as to the adoption of such resolution and setting forth facts demonstrating that the delivery of the Deed is in conformity with the requirements of BCL § 909. The Deed shall also contain a recital sufficient to establish compliance with such law; iii) If applicable, a waiver of right of first refusal of the board of managers of the Condominium (“Board”) in accordance with pare. 8; iv) A statement by the Condominium or its managing agent that the common charges and any assessments then due and payable to the Condominium have been paid to the date of the Closing; (¥) Ali keys to the doors of, and mailbox for, the Unit; (vi) Such affidavits and/or other evidence as the title company (“Title Company") from which Purchaser has ordered a title insurance resort and which is authorized to do business in New York State shall reasonably require in order to omit from its title insurance policy all exceptions for judgments, bankruptcies or other returns against Seller and persons or entities whose names are the same as or are similar to Seller’s name; (vii) Official New York State Real Property Transfer Gains Tax Tentative Assessment and Return (or, if applicable, Official Statement of No Tax Due) duly completed by the New York State Department of Taxation and Finance (or, if applicable, a duly executed and acknowledged affidavit of Seller in form required pursuant to the Gains Tax Law (as hereinafter defined) claiming exemption therefrom; (iii) If the Unit is located in the City of New York, a New York City Real Property Transfer Tax Return prepared, executed and acknowledged by Seller in. proper form for submission; (ix) Checks in payment of all applicable real. property transfer taxes and any New York State Real Property Transfer Gains Tax (“Gains Tax”) due in connection with the sale, which checks shall be certified or official bank checks, if required by the taxing authority and shall be drawn on any banking institution described in subpara. 3(b). In liew of delivery of such checks, Seller shall have the right, upon reasonable notice to Purchaser, to cause Purchaser to deliver said checks at the Closing and to credit Purchaser with the amount thereof against the balance of the Purchase Price. Selier shall pay the additional transfer taxes and Gains Taxes, if any, payable after the Closing by reason of the conveyance of the Unit, which obligation shall survive the Closing; and {x) Certification that Seller is not a foreign person pursuant to para. 18. (If inapplicable, delete and provide for compliance with Code Section, as defined in para. Vin 18) (x1) Oeigtual Condominium Often iw Flaw ) At the Closing, Purchaser shall deliver to Seller the following: @ Checks in payment of the balance of the Purchase Price in accordance with subpara. 3(b); i) If required by the Declaration or By-Laws, power of attomey to the Board, prepared by Seller, in the form required by the Condominium. The power of attorney shall be executed and acknowledged by Purchaser and, after being recorded, shall be sent to the Condominium; ii) If the Unit is located in the City of New York, a New York City Real Property Transfer Tax Retum executed and acknowledged by Purchaser and an Affidavit in Liew of Registration pursuant to New York Multiple Dwelling Law, each in proper form for submission; and (iv) If required, New York State Equalization Retum executed and acknowledged by Purchaser in proper form for submission. (©) _Itis a condition of Purchaser's obligation to close title hereunder that: @) Ail notes or notices of violations of law or governmental orders, ordinances or requirements affecting the Unit and noted or issued by any governmental department, agency or bureau having jurisdiction which were noted or issued on or prior to the date hereof shall have been cured by Seller; (ii) Any written notice to Seller from the Condominium (or its duly authorized representative) that the Unit is in violation of the Declaration, By-Laws or rules and regulations of the Condominium shall have been cured; and Gii) The Condominium is a valid condominium created pursuant to RPL Art. 9-B and the Title Company will so insure. 7. Closing Adjustments: (a) The following adjustments shall be made as of 11:59 P.M. of the day before the Closing: (i) Real estate taxes and water charges and sewer rents, if separately assessed, on the basis of the fiscal period for which assessed, except that if there is a water meter with respect to the Unit, apportionment shall be based on the last available reading, subject to adjustment after the Closing, promptly after the next reading is available; provided, however, that in the event real estate taxes have not, as of the date of Closing, been separately assessed to the Unit, real estate taxes shall be apportioned. on the same basis as provided in the Declaration or By-Laws or, in the absence of such provision based upon the Unit's percentage interest in the Common Elements. Gi) Common charges of the Condominium; and Gii) If fuel is separately stored with respect to the Unit only, the value of fuel stored with respect to the Unit af the price then charged by Seller’s supplier (as determined by a ietter or certificate to be obtained by Seller from such supplier), including any sales taxes. 0) If at the time of Closing the Unit is affected by an assessment which is or may become payable in installments, then, for the purposes of this Contract, only the unpaid installments which are then duc shall be considered due and are to be paid by Seller at the Closing. All subsequent installments at the time of Closing shall be the obligation of Purchaser. ©) Any errors or omissions in computing closing adjustments at the time of Closing shall be corrected. This subpara. 7(c) shall survive the Closing. {a) If the Unit is iocated in the City of New York, the “customs in respect to title closings” recommended by The Real Estate Board of New York, Inc., as amended and in effect on the date of Closing, shall apply to the adjustments and other matters therein mentioned, except as otherwise provided herein. 8. Right of First Refusal: If so provided in the Declaration or By-Laws, this sale is subject to and conditioned upon the waiver of a right of first refusal to purchase the Unit held by the Condominium and exercisable by the Board. Seller agrees to give notice promptly to the Board of the contemplated sale of the Unit to Purchaser, which notice shall be given in accordance with the terms of the Declaration and By-Laws, and Purchaser agrees to provide promptly all applications, information and references reasonably requested by the Board. If the Board shall exercise such right of first refusal, Seller shall promptly refund to purchaser the Downpayment (which term, for all purposes of this Contract, shall be deemed to include interest, if any, earned thereon) and upon the making of such refund this Contract shall be deemed cancelled and of no further force or effect and neither party shall have any further tights against, or obligations or liabilities to, the other by reason of this Contract. If the Board shall fail to exercise such right of first refusal within the time and in the manner provided for in the Declaration or By-Laws or shall declare in writing its intention not to exercise such right of first refusal (a copy of which writing shall be delivered to Purchaser promptly following receipt thereof), the parties hereto shali proceed with this sale in accordance with the provisions of this Contract. 9. Processing Fee: Purchaser shall, at the Closing, pay all fees and charges payable to the Condominium (and/or its managing agent) in connection with this sale, including, without limitation, any processing fee, the legal fees, if any, of the Condominium’s attomey in connection with this sale and, unless otherwise agreed to by Seller and Purchaser in writing, all “flip-taxecy” transfer or entrance fees or similar charges, if any, payable to or for the Condominium or otherwise for the benefit of the Condominium owners, whish-arise- by-reaserofthissale. LOO Cae applicebce + Pu ohare 10. No Other Representations: Purchaser has examined and is satisfied with the Declaration, By-Laws and rules and regulations of the Condominium, or has waived the Ye examination thereof. Purchaser has inspected the Unit, its fixtures, appliances and equipment and the personal property, if any, included in this sale, as well as the Common Elements of the Condominium, and knows the condition thereof and, subject to subpara. 5(f), agrees to accept the same “as is,” i.e., in the condition they are in on the date hereof, We subject to normal use, wear and tear between the date hereof and the Closing. Purchaser has examined or waived examination of the last audited financial statements of the Condominium, and has considered or waived consideration of all other matters pertaining to this Contract and to the purchase to be made hereunder, and does not rely on any representations made by any broker or by Seller or anyone acting or purporting to act on behalf of Seller as to any matters which might influence or affect the. decision to execute this Contractor to buy the Unit, or said personal property, except those representations and werranties which are specifically set forth in this Contract. 11. Possession: Seller shall, prior to the Closing, remove from the Unit all furniture, furnishings and other personal property not included in this sale, shall repair any damage caused by such removal, arid shall deliver exclusive possession of the Unit at the Closing, vacant, broom-clean and free of tenancies or other rights of use or possession. 12. Access: Seller shall permit Purchaser and its architect, decorator or other authorized persons to have the right of access to the Unit between the date of hereof and the Closing for the purpose of inspecting the same and taking measurements, at teasonable times and upon reasonable prior notice to Seller (by telephone or otherwise). Further, Purchaser shall have the right to inspect the Unit at a reasonable time during the 24-hour period immediately preceding the Closing. 13. Defaults and Remedies: (a) If Purchaser defaults hereunder, Seller’s sole remedy shall be to retain the Downpayment as liquidated damages, it being agreed that Seller’s damages in case of Purchaser's default might be impossible to ascertain and that the .Downpayment constitutes a fair and reasonable amount of damages under the circumstances and is not a penalty. (b) If Seller defaults hereunder, Purchaser shall have such remedies as Purchaser shall be entitled to at law or in equity, including, but not limited to, specific performance. 44. Notices: Any notice, request or other communication (“Notice”) given or made hereunder (except for the notice required by para. 12), shall be in writing and either (a) sent by any of the parties hereto or their respective attorneys, by registered or certified mail, return receipt requested, postage prepaid, or (b) delivered in person or by overnight courier, with receipt acknowledged, to the address given at the beginning of this Contract for the party to whom the Notice is to be given, or to such other address for such party as said party shall hereafter designate by Notice given to the other party pursuant to this para. 14, Each Notice mailed shall be deemed given on the third business day following the date of mailing the same and each Notice delivered in person or by overnight courier shall be deemed given when delivered. 15, Purchaser’s Lien: The Downpayment and all other sums paid on account of this Contract and the reasonable expenses of the examination of title to, and departmental violation searches in respect of, the Unit are hereby made a lien upon the Unit, but such lien shall not continue after default by Purchaser hereunder. 16. Downpayment in Escrow: (a) Seller’s attomey (“Escrowee™) shall hold the proceeds of the Downpayment in escrow in a special bank account (or as otherwise agreed in writing by Seller, Purchaser and Escrowee) until the Closing or sooner termination of this Contract and shall pay over or apply such proceeds in accordance with the terms of this para. 16. Escrowee need not hold such proceeds in an interest-bearing account, but if any interest is earned thereon, such interest shall be paid to the same party entitled to the escrowed proceeds, and the party receiving such interest shall pay any income taxes thereon. The. social security numbers of the parties shall be furnished to Escrowee upon request. At the Closing, such proceeds and the interest thereon, if any, shall be paid by Escrowee to Seller. If for any reason the Closing does not occur and either party makes a written demand upon Escrowee for payment of such proceeds and the interest thereon, if any, Escrowee shall give written notice to the other party of such demand, If Escrowee does not receive a written objection from such other party to the proposed payment within 10 business days after the giving of such notice, Escrowee is hereby authorized to make such payment. If Escrowee does receive such written objection within such 10-day period or if for any other reason Escrowee in good faith shall elect not to make such payment, Escrowee shall continue to hold such amount until otherwise directed by written instructions from the parties to this Contract or a final judgment of a court. However, Escrowee shall have the right at any time to deposit such proceeds and interest thereon, if any, with the Clerk of the Supreme Court of the county in which the Unit is located. Escrowee shall give written notice of such deposit to Seller and Purchaser. Upon such deposit or other disbursement in accordance with the terms of this para. 16, Escrowee shall be relieved and discharged of all further obligations and responsibilities hereunder. {b) The parties acknowledge that Escrowee is acting solely as a stakeholder at their request and for their convenience, that Escrowee shall not be deemed to be the agent of either party and that Escrowee shall not be liable to either party for any act or omission in bad faith or in willful disregard on its part unless taken or suffered of this Contract or involving gross negligence. Seller and Purchaser jointly and severally indemnify and hold Escrowee hamiless from and against all costs, claims and expenses (including reasonable attomeys’ fees) incurred in connection with the performance of Escrowee’s duties hereunder, except with respect to actions or omissions taken or suffered by Escrowee in bad faith or in willful disregard of this Contract or involving gross negligence on the part of Escrowee. {c) Escrowee may act or refrain from action in respect of any matter referred to herein in full reliance upon and with the advice of counsel which may be selected by it (including any member of its firm) and shall be fully protected ie so acting or refraining from action upon the advice of such counsel. (d) Escrowee has acknowledged agreement to the provisions of this para. 16 by signing in the place indicated on the signature page of this Contract. {e) Escrowee or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Downpayment or any other dispute between the parties whether or not Escrowee is in possession of the Downpayment and continues to act as Escrowee. 17. New York State Gains Tax: (e} Seller and Purchaser agree to comply in a timely manner with the requirements of article 31-B of the Tax Law and the regulations applicable thereto, as the same from time to time may be amended (collectively, the “Gains Tax Law”). Purchaser agrees to deliver to Seller a duly executed and acknowledged Transferee Questionnaire simultaneously with the execution of this Contract or within 5 business days after subsequent written request from Seller or Seller’s attorney. At the Closing Seller shall deliver (i) an Official Statement of No Tax Due or Gi) an Official Tentative Assessment and Return accompanied by a certified or official bank check drawn on any banking institution described in subpara. 3(b), payable to the order of the State Tax Commission, in the amount of the tax shown to be due thereon, or Gil) if applicable, a duly executed and acknowledged affidavit in form permitted under the Gains Tax Law claiming exemption therefrom. (by Seller agrees (i) to pay promptly any tax due under the Gains Tax Law and interest and penalties thereon, if any, which may be assessed or due after the Closing, (ii) to indemnify and save Purchaser harmless from and against any of the foregoing and any cost, claim and expense (including reasonable attomeys’ fees) incurred by Purchaser by reason of the nonpayment thereof, and (iii) to make any other payments and execute, acknowledge and deliver such further documents as may be necessary to comply with the Gains Tax Law. (c) The obligations rising pursuant to this para. 17 shall survive the Closing. 18. FIRPTA: Seller represents and werrants to Purchaser that Seller is not a “foreign person” as defined in IRC § 1445, as amended, and the regulations issued thereunder (‘Code Withholding Section”). At the Closing Seller shall deliver to Purchaser a certification stating that Seller is not a foreign person, which certification shall be in the form then required by the Code Withholding Section. In the event Seller fails to deliver the aforesaid certification or in the event that Purchaser is not entitled under the Code Withholding Section to rely on such certification, Purchaser shall deduct and withhold from the Purchase Price a sum equal to 10% thereof and shall at Closing remit the withheld amount with the required forms to the Intemal Revenue Service. 19. Title Report; Acceptable Title: (a) Purchaser shall, promptly after the date hereof, order a title insurance report from the Title Company. Promptly after receipt of the title report and thereafter of any continuations thereof and supplements thereto, Purchaser shall forward a copy of each such report, continuation or supplement to the attorney for Seller. Purchaser shall further notify Seller’s attomey of any other objections to title not reflected in such title report of which Purchaser becomes aware following the delivery of such report, reasonably promptly after becoming aware of such objections. (6) Any unpaid taxes, assessments, water charges and sewer rents, together with the interest and penalties thereon to a date not less than two days following the date of Closing, and any other liens and encumbrances which Seller is obligated to pay and discharge or which are against corporations, estates or other persons in the chain of title, together with the cost of recording or filing any instruments necessary to discharge such liens and encumbrances of record, may be paid out of the proceeds of the monies payable at the Closing if Seller delivers to Purchaser at the Closing official bills for such taxes, assessments, water charges, sewer rents, interest and penalties and instruments in recordable form sufficient to discharge any other liens and encumbrances of record. Upon request made a reasonable time before the Closing, Putchaser shall provide at the Closing separate checks for the foregoing payable to the order of the holder of any such lien, charge or encumbrance and otherwise complying with subpara. 3(b). If the Title Company is willing to insure Purchaser that such charges, liens and encumbrances will not be collected out‘of or enforced against the Unit and is willing to insure the lien of Purchaser’s Institutional Lender (as hereinafter defined) free and clear of any such charges, liens and encumbrances, then Seller shall have the right in lieu of payment and discharge to deposit with the Title Company such funds or to give such assurances or to pay such special or additional premiums as the Title Company may require in order to so insure. In such case the charges, liens and encumbrances with respect to which the Title Company bas agreed so to insure shall not be considered objections to title. (©) Seller shall convey and Purchaser shall accept fee simple title to the Unit in accordance with the terms of this Contract, subject only to: (@) the Permitted Exceptions and (b) such other matters as (i) the Title Company or any other title insurer licensed to do business by the State of New York shall be willing, without special or additional premium, to omit as exceptions to coverage or to except with insurance against collection out of or enforcement against the Unit and (ii) shall be accepted by any lender described in RPL § 274-a (“Institutional Lender”) which has committed in writing to provide mortgage financing to Purchaser for the purchase of the Unit (“Purchaser's Institutional Lender), except that if such acceptance by Purchaser's Institutional Lender is unreasonably withheld or delayed, such acceptance shall be deemed to have ‘been given (@) Notwithstanding any contrary provisions in this Contract, express or implied, or any contrary rule of law or custom, if Seller shall be unable to convey the Unit in accordance with this Contract and if Purchaser elects not to complete this transaction without abatement of the Purchase Price, the sole obligation and liability of Seller shall be to refund the Downpayment to Purchaser, together with the reasonable cost of the examination of title to, and departmental violation searches in respect of, the Unit, aid upon the making of such refund and payment, this Contract shall be deemed cancelled and of no further force or effect and neither party shall have any further rights against, or obligations or liabilities to, the other by reason of this. Contract. However, nothing contained in this subpara. 19(d) shall be construed to relieve Seller from liability due to a willful default. 20. Risk of Loss; Casualty: (2) The risk of loss or damage to the Unit or the petsonal property included in this sale, by fire or other casualty, until the earlier of the Closing or possession of the Unit by Purchaser, is assumed by Seller, but without any obligation on the part of Seller‘to repair or replace any such loss or damage unless Seller elects to do so as hereinafter provided. Seller shall notify Purchaser of the occurrence of any such loss or damage to the Unit or the personal property included in this sale within 10 days after such occusrence or by the date of Closing, whichever first occurs, and by such notice shall state whether or not Seller elects to repair or restore the Unit and/or the personal property, as the case may be. If Seller elects to make such repairs and restorations, Seller’s notice shall set forth an adjourned date for the Closing, which shall be not more than 60 days after the date of the giving of Seller's notice. If Seller either does not elect to do so or, having elected to make such repairs and restorations, fails to complete the same on or before said adjourned date for the Closing, Purchaser shall have the following options: (@ To declare this Contract cancelled and of no further force or effect and receive a refund of the Downpayment in which event neither party shall thereafter have any further rights against, or obligations or liabilities to, the other by reason of this Contract; or Gi) To complete the purchase in accordance with this Contract without reduction in the Purchase Price, except as provided in the next sentence. If Seller carries hazard insurance covering such loss or damage, Seller shalt turn over to Purchaser at the Closing the net proceeds actually collected by Seller under the provisions of such hazard insurance policies to the extent that they are attributable to loss of or damage to any perty included in this sale, less any sums theretofore expended by Seller in repairing or replacing such loss or damage or in collecting such proceeds; and Seller shall assign (without recourse 'to Seller) Seller’s right to receive any additional insurance proceeds which are attributable to the loss of or damage to any property included in this sale. (b) If Seller does not elect to make such repairs and restorations, Purchaser may exercise the resulting option under (i) or (ii) of (@) above only by notice given to Seller within 10 s days after receipt of Seller’s notice. If Seller elects to make such repairs and restoration and fails to complete the same on or before the adjourned closing date, Purchaser may exetcise either of the resulting options within 10 days after the adjourned closing date. (c) In the event of any loss of or damage to the Common Elements which materially and adversely affects access to or use of the Unit, arising after the date of this Contract but prior to the Closing, Seller shall notify Purchaser of the occurrence thereof within 10 days after such occurrence or by the date of Closing, whichever occurs first, in which event Purchaser shall have the following options: (i) To complete the purchase in accordance with this Contract without reduction in the Purchase Price; or (ii) To adjoum the Closing until the first to occur of (1) completion of the repair and restoration of the loss or damage to the point that there is no longer a materially adverse effect on the access to or use of the Unit or (2) the 60th day after the date of the giving of Seller’s aforesaid notice. In the event Purchaser elects to adjourn the Closing as aforesaid and such loss or damage is not so repaired and restored within 60 days after the date of the giving of Seller’s aforesaid notice, then Purchaser shall have the right either to (x) complete the purchase in accordance with this Contract without reduction in the Purchase Price or (y) declare this Contract cancelled and of no further force or effect and receive a tefund of the Downpayment, in which latter event neither party shall thereafter have any further rights against, or obligations or liabilities to, the other by reason of this Contract. (d) In the event of any loss of or damage to the Common Elements which does not materially and adversely affect access to or use of the Unit, Purchaser shall accept title to the Unit in accordance with this Contract without abatement of the Purchase Price. 21. Internal Revenue Service Reporting Requirement: Each party shall execute, acknowledge and deliver to the other party such instruments, and take such other actions, as such other party may reasonably request in order to comply with IRC § 6045(e), as amended, or any successor provision or any regulations promulgated pursuant thereto, insofar as the same requires reporting of information in respect of real estate transactions. The provisions of this para. 21 shall survive the Closing. 22. Broker: Seller and Purchaser tepresent and warrant to each other that the only broker with whoin they have dealt in connection with this Contract and the transaction set forth herein is Max & Associates Realty Corp and High Class Realty. and that they know of no other broker who has claimed or may have the right to claima commission in connection with this transaction. The commission of such broker shall be paid by Seller pursuant to separate agreement. If no broker is specified above, the parties acknowledge that this Contract was brought about by direct negotiation between Seller and Purchaser and each represents to the other that it knows of no broker entitled to a commission in connection with this transaction, Seller and Purchaser shall indemnify and defend each other against any costs, claims or expenses (including reasonable attorneys’ fees) arising out of the breach on their respective parts of any representation, warranty or agreement contained in this para. 22. The provisions of this para. 22 shall survive the Closing or, if the Closing does not occur, the termination of this Contract, 23. Mortgage Contingency: (Delete if inapplicable) The obligations of Purchaser hereunder are conditioned upon issuance on or before 45 days herein of a written commitment from any Institutional Lender pursuant to which such Institutional Lender agrees to makea Joan to Purchaser, at Purchaser’s sole cost and expense, of not Jess than $333,000.00 at an annual rate of interest not to exceed for a