        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

906
CA 14-00014
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


LIBERTY AFFORDABLE HOUSING, INC.,
PLAINTIFF-APPELLANT,

                    V                                OPINION AND ORDER

MAPLE COURT APARTMENTS, DEFENDANT-RESPONDENT.


BYRNE, COSTELLO & PICKARD, P.C., SYRACUSE (GREGORY P. BAZAN OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

SCOLARO FETTER GRIZANTI MCGOUGH & KING, P.C., SYRACUSE (CHAIM J. JAFFE
OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an amended order of the Supreme Court, Jefferson
County (James P. McClusky, J.), entered March 13, 2013. The amended
order, among other things, granted that part of the motion of
defendant seeking to dismiss plaintiff’s first cause of action for
specific performance.

     It is hereby ORDERED that the amended order so appealed from is
unanimously affirmed without costs.

     Opinion by WHALEN, J.:

     In Rovello v Orofino Realty Co. (40 NY2d 633, 636), the Court of
Appeals held that summary dismissal is appropriate under CPLR 3211 (a)
(7) when the defendant’s evidentiary submissions “establish
conclusively that plaintiff has no cause of action.” We now consider
whether that holding remains viable in light of the Court’s recent
decision in Miglino v Bally Total Fitness of Greater N.Y., Inc. (20
NY3d 342).

                                    I

     The underlying facts are straightforward. In October 2006,
plaintiff contracted to purchase from defendant an affordable-housing
complex in the City of Watertown. Plaintiff was unable to secure
adequate funding by the initial closing date, and the parties agreed
to extend the closing date to December 31, 2007. On December 3, 2007,
plaintiff sent defendant an email explaining that it was “unable to
generate enough funds . . . to pay the . . . sales price in full” and
that, “[g]iven its nonprofit status, [it] has no . . . private source
of funding to cover any gap.” It is undisputed that the closing did
not occur as scheduled on December 31, 2007.
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     Over one year later, in an April 2009 letter, defendant informed
plaintiff that, “because the closing . . . did not take place,
[defendant] considers the Purchase Agreement with [plaintiff]
terminated, and the . . . deposit forfeited.” The April 2009 letter
also advised plaintiff that defendant may “market the property to
other parties,” but that it would consider a “new” purchase offer from
plaintiff.

     Approximately two years later, plaintiff finally secured adequate
funding to purchase the housing complex. Plaintiff wrote defendant in
September 2011 to inform it of this development; in that letter,
plaintiff indicated that “we need a signed purchase and sale
agreement.” Plaintiff thereafter submitted a new offer for the
complex in April 2012, but defendant rejected it in favor of a higher
offer.

     Plaintiff subsequently commenced the instant action for, insofar
as relevant on appeal, specific performance of the October 2006
contract. In lieu of answering, defendant moved to dismiss for facial
insufficiency under CPLR 3211 (a) (7). In support of the motion,
defendant submitted several documents, including the original purchase
agreement, the closing-date extender, plaintiff’s December 3, 2007
email, defendant’s April 2009 letter, plaintiff’s September 2011
letter, and plaintiff’s subsequent purchase offer. These documents,
according to defendant, conclusively demonstrated that plaintiff had
no cause of action for specific performance.

     In opposition, plaintiff argued that the evidence submitted by
defendant “clearly illustrates issues of fact regarding the causes of
action pled by [plaintiff] and does not establish the absence of any
valid cause of action by [plaintiff] or that no significant dispute
exists based on the evidence.” Like defendant, plaintiff also
submitted evidentiary materials to bolster its position.
Specifically, plaintiff offered a July 2012 letter from defendant and
a series of emails between plaintiff and defendant. Although the
letter proposed to settle the matter, it also reiterated that the
original October 2006 contract had been cancelled. The emails, for
their part, date only to mid-2011 and reflect the parties’ efforts to
work out a new deal after plaintiff finally obtained funding.

     Supreme Court granted defendant’s motion in part and dismissed
the cause of action for specific performance, stating in a bench
decision that “[i]t is clear that the parties acknowledge that the
purchase offer they were acting under was invalid. The exhibit[s] . .
. indicated one side withdraws and the other side is acknowledging, .
. . we withdraw, we need a new contract.” Plaintiff appeals, and we
conclude that the amended order should be affirmed.

                                  II

     The issue for our determination is whether the court properly
considered the documentary evidence that defendant claims is
dispositive. Plaintiff concedes that, prior to the Court of Appeals’
ruling in Miglino, the answer to that question was yes. Plaintiff
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                                                         CA 14-00014

contends, however, that Miglino fundamentally changed the parameters
of CPLR 3211 (a) (7) and effectively barred the consideration of any
evidentiary submissions outside the four corners of the complaint. We
reject that contention.

                                  A

     CPLR 3211 (a) (7) authorizes the summary dismissal of a complaint
for failure to “state” a cause of action. Historically, “[a] motion
to dismiss for failure to state a cause of action . . . was[] limited
to the face of the complaint” (Rovello, 40 NY2d at 638 [Wachtler, J.,
dissenting]), but the Legislature enlarged the scope of facial
sufficiency motions by enacting subdivision (c) of CPLR 3211, which
permits “trial court[s to] use affidavits in its consideration of a
pleading motion to dismiss” (id. at 635 [per curiam op]; see Nonnon v
City of New York, 9 NY3d 825, 827). The Court in Rovello held that
the plain text of CPLR 3211 (c) “leaves this question,” i.e., the
admissibility of affidavits on a motion pursuant to CPLR 3211 (a) (7),
“free from doubt” (id. at 635). The First Department recently
explained that Rovello’s reference to “affidavits” is merely shorthand
for “evidentiary submissions” (see Basis Yield Alpha Fund [Master] v
Goldman Sachs Group, Inc., 115 AD3d 128, 134 n 4).

     As noted in Rovello, however, CPLR 3211 does not specify “what
effect shall be given the contents of affidavits submitted on a motion
to dismiss when the motion has not been converted to a motion for
summary judgment” (id.). The Court noted that “[m]odern pleading
rules are ‘designed to focus attention on whether the pleader has a
cause of action rather than on whether he has properly stated one’ ”
and held that evidentiary submissions may only be considered for a
“limited purpose” in assessing the facial sufficiency of a civil
complaint (id. at 636). This “limited purpose,” Rovello explained, is
two-fold. On the one hand, “affidavits submitted by the defendant [as
movant] will seldom if ever warrant the relief” sought under CPLR 3211
(a) (7) “unless too the affidavits establish conclusively that
plaintiff has no cause of action” (id. [emphasis added]). On the
other hand, the nonmoving party may “freely” submit evidentiary
materials “to preserve inartfully pleaded, but potentially
meritorious, claims” (id. at 635).

     The “limited purpose” to be accorded evidentiary submissions on a
motion to dismiss has been consistently reiterated by the Court of
Appeals since Rovello (see e.g. Godfrey v Spano, 13 NY3d 358, 374;
Lawrence v Graubard Miller, 11 NY3d 588, 595). Indeed, in
Guggenheimer v Ginzburg (43 NY2d 268, 275), the Court of Appeals noted
that “dismissal should . . . eventuate” only when the defendant’s
evidentiary affidavits “show[] that a material fact as claimed by the
pleader to be one is not a fact at all and . . . that no significant
dispute exists regarding it” (see Wahl v Wahl, 122 AD2d 564, 564-565).

     Plainly, a “limited” role for evidentiary submissions on CPLR
3211 (a) (7) motions is to be distinguished from a nonexistent role.
For example, as recently as 2012, the Court of Appeals summarily
dismissed a complaint under, inter alia, CPLR 3211 (a) (7) because its
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                                                         CA 14-00014

factual underpinnings were “belied” by the documentary evidence
submitted in connection with the motion (Simkin v Blank, 19 NY3d 46,
54).

                                  B

     In Miglino, which was decided after Supreme Court’s decision
herein, the plaintiff’s decedent suffered a heart attack while playing
racquetball at the defendant health club. The plaintiff alleged that,
inter alia, the health club’s employees had “negligently failed to use
an available [automatic defibrillator device], or failed to use it
within sufficient time, to save [the decedent’s] life” (20 NY3d at
345). The defendant moved to dismiss the complaint under CPLR 3211
(a) (7) and attached “affidavits . . . purporting to show that the
minimal steps adequate to fulfill a health club’s limited duty to a
patron apparently suffering a coronary incident—i.e., calling 911,
administering CPR and/or relying on medical professionals who are
voluntarily furnishing emergency care—were, in fact, undertaken” (id.
at 351). Supreme Court denied the motion, and the Second Department
agreed with Supreme Court, except to the extent that a part of the
motion was unopposed by the plaintiff (92 AD3d 148). The Court of
Appeals affirmed, and in doing so addressed the facial sufficiency of
the plaintiff’s theory of common law liability (id. at 350-351). In
that context, the Court cited Rovello for the proposition that “CPLR
3211 (a) (7) . . . limits [courts] to an examination of the pleadings
to determine whether they state a cause of action” (id. at 351).
Thus, the Court reasoned, “the case is not currently in a posture to
be resolved as a matter of law on the basis of the parties’
affidavits, and Miglino has at least pleaded a viable cause of action
at common law” (id.). It is this language, according to plaintiff,
that precludes any consideration of evidentiary submissions on a CPLR
3211 (a) (7) motion.

      The First Department addressed this issue in Basis Yield,
holding, in effect, that Miglino had not altered the longstanding
practice by which dismissal might be obtained under CPLR 3211 (a) (7)
with sufficiently “conclusive” evidentiary submissions (see id. at
133-135; see also Loreley Fin. [Jersey] No. 3 Ltd. v Citigroup Global
Mkts. Inc., 119 AD3d 136, 139 n 2).

      Although the Second Department has not considered the issue as
directly as the First Department did in Basis Yield, that Court has
also continued to evaluate, post-Miglino, whether a defendant’s
evidentiary submissions were sufficiently conclusive to warrant
summary dismissal under CPLR 3211 (a) (7) (see Rosin v Weinberg, 107
AD3d 682, 683-684; see also QK Healthcare, Inc. v InSource, Inc., 108
AD3d 56, 64-65; Nunez v Mohamed, 104 AD3d 921, 922).

                                  C

     The interpretation of Miglino is an issue of first impression in
this Department, and we decline to give Miglino the expansive reading
urged by plaintiff. Instead, we agree with the Basis Yield majority
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                                                         CA 14-00014

that Miglino did not, in effect, overrule Rovello.

     Indeed, given its unqualified citation to Rovello, Miglino is
properly understood as a straightforward application of Rovello’s
longstanding framework. Miglino was “not currently in a posture to be
resolved as a matter of law on the basis of the parties’ affidavits”
(20 NY3d at 351) because the evidentiary submissions were
insufficiently conclusive, not because they were categorically
inadmissible in the context of a CPLR 3211 (a) (7) motion. We
therefore conclude that the court properly considered defendant’s
evidentiary submissions in evaluating the motion to dismiss at bar.

                                 III

     The remaining question is whether the evidentiary submissions in
this case were sufficiently “conclusive” to sustain the court’s
summary dismissal of plaintiff’s cause of action for specific
performance. Plaintiff argues that they were not; in its view, the
evidentiary submissions “might bring into question the facts as
alleged by [plaintiff], but said submissions fail to conclusively
demonstrate that the material facts as claimed in the complaint are
not facts at all and that no dispute exists as to those material
facts.” Specifically, plaintiff says that the evidentiary submissions
demonstrate that the parties “had a continued course of dealing
leading up to the instant lawsuit,” and, thus, “directly contradict[]
the trial court’s assertion that [plaintiff] acknowledged that the
Agreement was invalid.”

     Defendant disagrees. In its view, plaintiff “specifically
acknowledged that [it] could neither close the transaction by the date
set forth in the Agreement nor by the date set forth in the
Amendment.” “Furthermore,” defendant continues, plaintiff “repeatedly
acknowledged and admitted that the Agreement and Amendment were
invalid.” We agree with defendant and conclude that the first cause
of action was properly dismissed.

     “The elements of a cause of action for specific performance of a
contract are that the plaintiff substantially performed its
contractual obligations and was willing and able to perform its
remaining obligations, that defendant was able to convey the property,
and that there was no adequate remedy at law” (EMF Gen. Contr. Corp. v
Bisbee, 6 AD3d 45, 51, lv dismissed 3 NY3d 656, lv denied 3 NY3d 607).
A plaintiff is not “able to perform its remaining obligations” if it
cannot do so within the timeframes set forth in the contract. Thus,
“[b]efore specific performance of a contract for the sale of real
property may be granted, a plaintiff must demonstrate that he was
ready, willing, and able to perform on the original law day or, if
time is not of the essence, on a subsequent date fixed by the parties
or within a reasonable time thereafter” (Goller Place Corp. v Cacase,
251 AD2d 287, 287-288).

     Here, the documentary evidence attached to defendant’s motion
flatly contradicts plaintiff’s allegation that it was ready, willing,
and able to close by the December 31, 2007 closing date or within a
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                                                         CA 14-00014

reasonable time thereafter. In the December 3, 2007 email, plaintiff
specifically informed defendant that it lacked sufficient funding to
close on the scheduled date. It is undisputed that the deal did not
close on the appointed day, and, in its April 2009 letter, defendant
terminated the contract “because the closing . . . did not take
place.” Furthermore, the April 2009 termination letter – which
plaintiff ignores in its opposing papers and in its appellate brief –
advised plaintiff that defendant might “market the property to other
parties,” but that it would consider a “new” purchase offer from
plaintiff. We note that plaintiff acknowledged the original
contract’s cancellation by submitting a new purchase offer for the
property in April 2012, and plaintiff explicitly admitted in September
2011 that “we need a signed purchase and sale agreement” in order to
move forward with the new offer.

     The foregoing documentary evidence, the authenticity of which is
undisputed, conclusively establishes that plaintiff was unable to
close the deal on the closing date, and that the contract was
appropriately terminated as a result. Contrary to plaintiff’s
contention, the emails submitted in opposition to defendant’s motion
do not demonstrate a “continued course of dealings.” The emails
relate only to the parties’ communications in 2011 – not 2007 or 2009
– and reflect the parties’ efforts to work out a new deal following
the cancellation of the 2007 agreement. Thus, as a matter of law,
plaintiff has no cause of action for specific performance (see id. at
288; cf. Zeld Assoc., Inc. v Marcario, 57 AD3d 660, 660; see generally
Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997, 998).

     Finally, plaintiff’s contention regarding defendant’s alleged
failure to make time of the essence is unpreserved for our review (see
Deputy Sheriff’s Benevolent Assn. of Onondaga County v County of
Onondaga, 288 AD2d 953, 954). In any event, even assuming that
defendant was required to formally make time of the essence before it
was entitled to cancel the original contract, we conclude that
specific performance is unwarranted unless plaintiff was, in fact,
financially able to close the transaction on the closing date or
within a reasonable period of time thereafter (see Huntington Min.
Holdings, 60 NY2d at 998; 28 Props., Inc. v Akleh Realty Corp., 22
AD3d 432, 432, lv denied 6 NY3d 714). The documentary evidence
establishes that a successful closing was not within plaintiff’s reach
in December 2007 or at any reasonable point thereafter. Indeed,
“[p]laintiff failed to demonstrate until [almost] four years
subsequent to the original closing date that it was financially able
to close” (28 Props., Inc., 22 AD3d at 432).

                                  IV

     Accordingly, we conclude that the court properly granted that
part of defendant’s motion seeking dismissal of the first cause of
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                                                         CA 14-00014

action and that the amended order therefore should be affirmed.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
