THE RISK TO A SELLER WHO WON'T SELL..AND A BUYER WHO WON'T WALK AWAY

As the court noted in the companion appeal, the elements of a cause of action for specific performance of a contract for the sale of real property are that the plaintiff substantially performed its contractual obligations and was [ready,] 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. NOTE: the contract of sale was entered into in September 2013 and the court ordered conveyance took place around October 2018. That's a long wait for a house.

Breskin v Moronto, 2019 NY Slip Op 04127, Decided on May 29, 2019, Appellate Division, Second Department:

"The basic facts of this case are related in a companion appeal (see Breskin v Moronto, _____ AD3d _____ [Appellate Division Docket No. 2016-03080; decided herewith]). In an order dated February 22, 2016, the Supreme Court granted the plaintiffs' motion for summary judgment on their first cause of action, which sought specific performance, and on their second cause of action, which sought reasonable costs and expenses, including attorneys' fees, pursuant to the terms of the parties' contract. The order directed the defendant to deliver the premises vacant, with no tenants on the first and third floors, and directed the plaintiffs to make a separate motion for an award of reasonable costs and expenses, including attorneys' fees. In an order dated March 7, 2016, the court, upon renewal and reargument, adhered to the determination in the order dated February 22, 2016, [*2]and directed that "[s]pecific performance of the contract must be completed on or before" April 6, 2016.

When the closing did not occur by April 6, 2016, the plaintiffs moved, inter alia, to hold the defendant in civil contempt and to direct the Sheriff of Kings County to convey the property to them. In a separate motion, the plaintiffs sought an award of attorneys' fees in the sum of $199,123.50, costs in the sum of $300, and disbursements and expenses in the sum of $4,805.11. In the order appealed from, the Supreme Court directed the defendant to convey the subject real property to the plaintiffs and awarded the plaintiffs attorneys' fees in the sum of $5,000, costs in the sum of $300, and disbursements and expenses in the sum of $4,805.11. The court denied that branch of the plaintiff's motion which was to hold the defendant in civil contempt, "particularly without a hearing ascertaining the intent of the defendant." The plaintiffs appeal.

While this appeal was pending, in an order dated October 26, 2018, the Supreme Court directed the Sheriff of Kings County to convey the property to the plaintiffs, and the property was so conveyed. Accordingly, the remaining issues on this appeal are whether the defendant should have been held in civil contempt and the amount of attorneys' fees awarded to the plaintiffs.

"A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence" (Matter of Hughes v Kameneva, 96 AD3d 845, 846). "In order to adjudicate a party in civil contempt, a court must find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct. The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence" and willfulness need not be established (Palmieri v Town of Babylon, 167 AD3d 637, 640 [citation omitted]).

Since a showing of willfulness is not required to establish civil contempt, no hearing was necessary with respect to the defendant's intent. We conclude that the defendant's conduct in failing to vacate the premises was in civil contempt of the orders dated February 22, 2016, and March 7, 2016. Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing and determination as to the appropriate punishment for contempt and the appropriate directive for allowing the defendant to purge herself of her contempt.

Further, it is apparent that the defendant was in violation of the terms of the parties' contract, and pursuant to the terms of that contract the plaintiffs were entitled to an award of reasonable costs and expenses, including attorneys' fees. The Supreme Court improvidently exercised its discretion when it awarded the plaintiffs the sum of only $5,000 in attorneys' fees. Accordingly, we also remit the matter to the Supreme Court, Kings County, for a hearing and a new determination of the award of attorneys' fees to which the plaintiffs are entitled pursuant to the terms of the contract (see East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 150 AD3d 683, 690; Altadonna v Accord Contr. & Mgt. Corp., 148 AD3d 764).

Since this action for specific performance is an action of an equitable nature, interest on the award of reasonable costs and expenses, including attorneys' fees, and the rate and date from which that interest shall be computed shall be in the court's discretion (see CPLR 5001[a]; John Hancock Life Ins. Co. of N.Y. v Hirsch, 77 AD3d 710, 711), governed by the facts, including any wrongful conduct by either party (see Danielowich v PBL Dev., 292 AD2d 414, 415). This issue should be determined after the hearing."