Wexler v Ambalo

2024 NY Slip Op 31220(U)

April 9, 2024

Supreme Court, Kings County

Docket Number: Index No. 536903/2023

Judge: Leon Ruchelsman

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
FILED: KINGS COUNTY CLERK 04/09/2024 02:21 PM INDEX NO. 536903/2023

NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/09/2024

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SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OT KINGS : CIVIL TERM: COMMERCIAL 8 ---- . -----.-·---· -------·---· ·-·-.----- ·--.---- .x 

AA.RON WEXLER and RICK KAMINER, 

Plaintiffs, Decision ~hd order 

- against - Index No. 536903/2023 

DAVID AMBALO, 4 683 PARK DA LLC, 

SPRINGFIELD 141 LLC, and JOHN DOES and JANE 

DOES #1-10, the last 10 name·s being 

fictitious and unknown to the plaintiffs, 

Defendants, April 9, 2024 ----·--·· ---------·- ·.-·----.--. -.-----------·----x· 

PRESENT: HON. LEON RUCHELSMAN Motion Seq. #1 & #2 

The defendants have moved pursuant to CPLR.§3211 seeki,ng to 

dismiss the complaint for the failure to allege any causes of 

action. The plaintiff has cross-moved seeking partial summary 

judgement. The motions have been opposed respectively. Papers 

were submitted by the parties and arguments were held. After 

reviewing all the arguments this court now makes the following 

determination. 

According to the verified complaint the plaintiff Aaron 

Wexler owns 52,5% of an entity called 2351 Management LLC, 

plaintiff Rick Kaminer owhs 17.5% and the defendant David Ambalo 

Owns 30% Of that entity. That entity is a 90% owner of 2351 

Pacific Street located in Kings CoUhty. The ~emaining ten 

percent is owhed by Twinnies LLC, which is owned by Wexler and a 

non-party. Moreover, defendant Ambalo is the sole ow-ner o.f 46_83 

Park DA LLC, which is the sole member of Springfield 141 LLC, 

which owns a 50% ownership interest in the pr'operty located at 

4683 Park Avenue in Bronx County. The other 50% owner is Forrest 

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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 04/09/2024

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Equitie•s LLC, which is 'Owned by the plaintiffs. On April 5, ·2023: 

the parties entered .into a: settlement agreement whereby Ambalb 

would become the sole own:er of 23til Pacif .:l..c while the pla'inti£fs 

would beco_me the sole owners of 46:-S3 Par·k and that further We·xier 

would pay Ambalo $500,000. The verified cornpiaint alleges. that 

Ambalo. repudiated the agreement by notifying the plaintiffs he 

would not be transfe·rring any -of his :Shares because· the closing 

q.id not occur by the closing date. The plaintiffs _commenced this 

action and have asse;.rted four caus.es of action, namely for 

speci,fic performance.,, breach of contract, expectation damages and 

tortio1,is intE?arfe.tence. The verified complaint ~ll~ges tl:1.e 

plaintiffs sat.i:S.fied all the co.ndi tions necessary .f.or the. . . 

tran.sf.er and the defendant unilaterally brea.ched said a_gr~ement. 

The defe-ndants .have now :moved s~-~ki_ng t_o di.~mis9 the 

complaint. on the- grounds no breach_ of_ the settlement ag.reer_nent 

occurred becat.lsEi" the pla_ihtiffs f.ailed to. satisfy necessary 

condi tioris pr·ecedent . The plaintiff .;_i have c ro ~:s.-moved see kin:g a 

<;ie:i;;"ermina:t-ion t:he defendant must comi:ily with the se-ttlement 

agreement. As noted the motions a::re> ·opp_qsed. 

Conclusions o.f: Law 

It is well s·e•ttled that upon a· motion tq di.smis-s the court 

must determine, accept.ihg th!i:!• alleg.ations of the complaint as 

true, wbethe·r tn-e p.iarty can succeed upon any reafrnnab1e· vi~w o-f 

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those facts· (Pere.z -v. Y & M .Tr.anspo·rtation Co.rporati:0n;- 219 AD3q 

14.49, 1.96 NXS3d 145 [2q. pept., 202~]). Further, all the 

allegations· in the complaint a·te deemed true and all reasonahie 

inference.s m-c;1.y be tjrawn _in fC;:J.y.or o.t the p.lain.t_j,ff (.ArchLva1 Ihc .. , 

v. 177 Realty Corp., 220 AD3d 909, 198 NYS2d 567 [2d Dept., 

ZOZ3 l ) . Whether -the complaint will -late.r survive a ·motion for 

-summary judgment, or whe.ther the pla.intiff will ultimately be 

able t.o prove its claims, of cours.$, plays no. part in the 

detE;Jr~inatiqn, of .a- pre...,_discove.ry CPLR §·~211 motion to dismiss 

(~. Lam v. Weiss., 219 AD3d '7:13 ,. 195 N':i;'S3d 4.s·s [ 2d Dept., 

.'2023)).. 

The settiemettt agr.e.ement .provided that, UJ?On s.at,isfa.ction o.f 

a.11 conditio.ns precedent, the closing would occ:ur .on 9r b~for~ 

one hundred and t"l,renty· days from the date of execution (see, 

Settlement Agreement, j2 [NYS-CEF D.oc. N.Q. ?J) .. Section 8 qf the 

.agreement states that ':'Ambalo shall have the option o.f cancelling 

this Agreement should the i terns provided in section s., 6 .and 7 

herei.n- .not be· complied w.i.th'r (:id).. Furtner, Section 13 of the 

agreement states that ~'Wexler shall pay to Arribalo the net sum of 

·Five H.uttdred Thousand Doii:ar:s (.$50.d, .000. 0-0 j at or prior to 

Glps,ing (the "Payment"), by ce.rti'fied ch.eek or wire .. Should 

Wexler fail to ·make this Payment .by the ciosing Deadli_n.e, then 

tp.i.s Agreement shall be null and void, and the Parties shall 

retain all of their ri9hts and obl~gations prior to this 

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Agreement" (id). 

There is no dispute that the plaintiffs failed to satisfy 

all the conditions precedent contained in paragraphs 5, 6 and 7 

and failed to pay Ambalo $500,000 pursuant to the agreement. The 

plaintiffs .argue that the agreement did not contain a time of the 

es-sence clause. Consequently, "Defendants were therefore unc:3,ble 

to terminate the agreement without first sending an unequivocal 

notice that time is of the essence'' (see, Memorandum of Law; page 

9 [NYSCEF Doc. No~ 12]); How~~er, a time of the es~ence clause 

is not required where the contract contains a specific 

termination provision (USA Recycling Inc .• v. Baldwin EndiCo 

Realty Associates Inc., 191 AD3d 619, 139 NYS3d 529 [1st Dept ... , 

2021]) . Furthermore, language in a .contract that states if 

conditions remain unfilled by a certain date then "the sole 

remedy of the purchaser is to elect to cancel this contract'; a 

time of the essence is surely implied (~r S'.guicciarini v. Park 

Ridge at Terryville Associates, 199 AD2d 376, 605 NYS2d 372 [2d 

De pt • , 19 9 3 J ) • 

In this case the agreement specifically stated that upon the 

failure to comply with the conditionEi, the defendant had the 

Option to cancel the contract and that if the $500,000 was not 

paid by the closing date then the agreement is "null and void" 

(see, Settlement Agreement, fil13 [NYSCEF Doc. NO. 2]). The 

plaintiffs argue the. defendants terminated the agreement 

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prematurely. Thus, defE;!.ndan,t' s :r:-ep:i;,-eBent·ative, Eli Ambalo, sent 

_ap e~ail on August 10~ 2023 that purported to tancel the 

settlement agreement (see, NYSCEF Doc. No. J.A) , However, ·Eli 

.Arribalo- was .not a party t.o the. agreement .-?3-.nd the-re: are: surely 

questions wh_ether he had the authority to so act. In any event 

on September 11, 2.0-23 counsei" for David Ambalo sent -a lette.r to_: 

plaintiffs indicat.1.n9 that more than on~- :hundre:q. and twenty _days. 

had passed arid the. plaintiffs had failed to satisfy the 

ccindi tidris precedent and thus the -a-greetnent was void (.§.§§., NYSCJ~]F 

Doc. No. 7) •. Thqs, the defendant d.ii::i not have to delay 

termination by first serving ·a time ·-of the essence letter. 

Rather.,. termi·nation: was automatic upon the p.laintif•fi s failure to 

satisfy the. conditions or pay Ambalo. Therefore,- .Ambalo's 

termination -occur-.r·ed after one hundr:ed and twenty d.ays anq the 

agreement terminated at that juncture. There- can be_ no causes ·Of 

ac:tion that flow therefrom. Thus, the cte:eendant's motion seeking 

to dismiss the complaint is g--ranted. The plaintiff.' s· cros-smotior1 is denied,. 

Sci ordered. 

DAT.ED: April 9·, 2024 

Brooklyn ·N.Y. 

ENTER: 

H"on. te6~ Rue.helsman 

JSC 

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