Court Determines Whether Or Not Calvano Keeps $110K Deposit
In April 2020, 7 Mansion LLC entered into a contract to purchase from Lynn Calvano a parcel of property located in Old Westbury for a purchase price of $2,200,000. With a $110,000 contract deposit. Following various delays and an amendment to the contract, Mansion did not appear at a scheduled closing and, by letter dated December 8, 2020, Calvano cancelled the contract. Thereafter, Mansion commenced an action against Calvano seeking specific performance of the contract. Mansion also filed a notice of pendency against the property. Calvano moved to dismiss the complaint based upon documentary evidence and to cancel the notice of pendency. Supreme Court granted the motion. Mansion appealed.
A dismissal was warranted only if the documentary evidence utterly refuted Mansion’s factual allegations, and conclusively established Calvano’s defense as a matter of law. Thus, Calvano had the burden of demonstrating that the proffered documentary evidence conclusively refuted Mansion’s factual allegations. To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case. Letters, emails, and affidavits are not documentary evidence. But an unambiguous contract provision may constitute documentary evidence warranting the dismissal of the complaint.
Applying those principles, the Court concluded that the terms and conditions of the contract of sale utterly refuted Mansion’s allegations and established a defense as a matter of law . In support of the motion, Calvano submitted the deed, the contract, the amendment to the contract, various letters, and her own affidavit. Although the affidavit and the letters were not documentary evidence, the amendment to the contract stated that Mansion had failed to close at the agreed-upon dates in the contract and had requested extensions of time, and the contract and the amendment to the contract provided that Mansion’s failure to close pursuant to the terms and conditions of sale would result in a forfeiture of the down payment; and Mansion’s failure to close on the extended closing date would entitle Calvano to cancel the sale and to retain the down payment. And, in those circumstances, Mansion waived all claims of any right, title, and interest in the property and the down payment. Additionally, the terms and conditions of the amendment to the contract demonstrated that Mansion waived any and all rights to file a notice of pendency and to seek the return of the down payment.
Accordingly, Supreme Court properly granted Calvano’s motion to dismiss Mansion’s complaint and to cancel the notice of pendency.