The Supreme Court, Suffolk County has dismissed a $26 million specific performance action in Suites in Boca, LLC v. Sandbar North LLC, Index No. 604212/2016.  The case involved the basic question of whether the signature on a contract, without actual delivery, creates a binding agreement?  The contract at issue had been signed but not delivered to the prospective purchaser before the seller rejected the $26 million offer in favor of another buyer.   The prospective purchaser sued for specific performance anyway, and placed a notice of pendency on the property to stop the sale to the other buyer.  The Honorable Joseph Farneti of the Supreme Court reviewed the terms of the contract itself, which specifically provided that delivery was a pre-condition to the formation of a binding contract, before concluding that “no binding agreement was created between plaintiff and defendants.”  Justice Farneti explained the rule of law succinctly as follows:  “Where the parties have agreed that delivery is essential to the making of a contract, there is no agreement without it.”  He therefore dismissed the action, canceled the notice of pendency, and set the matter down for a hearing on the issue of an award of costs and expenses to the defendant for the “wrongful filing of the notice of pendency….”

The Supreme Court, Suffolk County has dismissed a neighbor’s challenge to the Town of East Hampton’s decision to buy and preserve a waterfront parcel in Levin v. Town Board, Index No. 21518/15.  The case involves the use of the Town’s “Community Preservation Fund,” or “CPF,” which is a dedicated fund used by the five East End towns to preserve open space.  The Levin case was a rare example of a neighbor who, rather than supporting the preservation effort, opposed it and argued that the acquisition of the property would negatively impact the enjoyment of his adjacent parcel.  The Honorable Daniel Martin of the Supreme Court rejected the challenge and found the neighbor’s concerns speculative and in disregard of the “… intent of the [CPF] program which is motivated by the greater good of the entire town and the Peconic Bay region.”  The case appears to be the first of its kind where a neighbor directly challenged a Town’s compliance with the mandates of the CPF program, as set forth in section 64-e of the N.Y. Town Law.  In this case, Justice Martin reviewed those requirements before concluding that the Town followed “all the mandates of 64-e of the Town Law concerning the CPF….”

The Appellate Division, Second Department has upheld a Village of Southampton Zoning Board decision in Wambold v. Village of Southampton ZBA.  The case involved the often misunderstood zoning issue of whether an accessory dwelling is a nonconforming use or a nonconforming structure.   The Village ZBA had concluded that the accessory dwelling was a nonconforming structure, which could be expanded through an area variance, but a neighbor challenged the decision on the ground that it was a nonconforming use, which could only be expanded through a use variance.  After the Supreme Court upheld the ZBA’s decision, the neighbor appealed.  The Appellate Division affirmed and agreed that only an area variance was required, because the owners “were not seeking to change the essential use of the property.”

A Suffolk County jury, after a two-week trial, has issued a verdict and awarded over $750,000 in damages (excluding interest) to a construction manager that was wrongfully terminated by a school district, in East Hampton Union Free School District v. Sandpebble Builders, Inc.   The school district had sued the construction manager first, seeking millions in alleged damages for breach of contract, and the construction manager counterclaimed for wrongful termination.  After more than nine years of pretrial litigation that included multiple appeals, one of which was heard by New York’s highest court,  the case finally reached trial in May of 2016.  The trial was conducted before the Hon. Jerry Garguilo over ten days, before being turned over to the jury.  After only two hours of deliberations, the jury returned a unanimous verdict in favor of the construction manager on all issues, rejecting the district’s claims and statute of limitations defense, finding the district’s actions to be a breach of contract, and it awarding the construction manager damages for the district’s breach.  The final judgment will include nearly ten years of interest added to the jury’s award.

In a case of first impression, the Supreme Court, Suffolk County has concluded that an Industrial Development Agency (IDA) that is in record ownership of a parcel is a necessary party to an ejectment action brought by a plaintiff claiming to be the “beneficial owner” of the property against a defendant who raises adverse claims of title, in JKJ Marine LLC v. 1320 Entertainment Inc., Suffolk Index No. 62514/14.   The defendant argued that the IDA, as record owner, must be joined in the action, but the plaintiff claimed that the IDA was just a nominal owner and was uninterested in the action.   After conducting a hearing to determine the issue, the Court (Hon. Paul J. Baisley, Jr.) concluded that the IDA was a necessary party and ordered that it be joined in the action.

We are pleased to announce a change in the name of the firm to “Esseks, Hefter, Angel, Di Talia & Pasca, LLP,” in recognition of Carmela Di Talia and Anthony Pasca’s contributions to the firm and their ten-year anniversary as partners.

The Supreme Court, Suffolk County (Hon. Paul J. Baisley, Jr.) has dismissed a specific performance action as premature, in Wunderlich v. Liberty Meadows, LLC, Index No. 64450/2014.  The plaintiff had brought the action before setting a “time of the essence” closing.  When the defendant moved to dismiss the action as premature, the plaintiff argued that the defendant “anticipatorily breached” the contract, thus excusing the plaintiff from setting a time of the essence closing.  The Supreme Court disagreed with the plaintiff and dismissed the action, holding that there was no anticipatory breach because the “defendant never expressed a clear and unequivocal intent not to perform or to abandon the contract….”

The Appellate Division, Second Department has upheld the dismissal of a challenge to a probate decree in Matter of Estate of Romano, 2016 NY Slip Op. 1682.  The court found that the challenger’s claim of “lack of capacity” on the decedent’s part was not supported by evidence, and the claim of “undue influence” was mere speculation and conjecture.