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`Plaintiffs,
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`Index No. 033862/2015
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ROCKLAND
`---------------------------------------------------------------
`WILLIAM A. MALONEY, AS TRUSTEE OF THE
`WILLIMA A. MALONEY REVOCABLE LIVING
`TRUST DATED APRIL 27, 2006, and
`VIRGINIA MALONEY, AS TRUSTEE OF THE
`VIRGINIA MALONEY REVOCABLE LIVING
`TRUST DATED APRIL 27, 2006
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`PINE ISLAND CORP.,
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`Defendant and Counterclaimant.
`
`
`---------------------------------------------------------------
`
`
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`-against-
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`PINE ISLAND’S PROPPOSED JURY INSTRUCTIONS AND VERDICT SHEET
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`Judith Bachman, Esq.
`254 S. Main Street, Suite 306
`New City, New York 10956
`845-639-3210
`
`

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`A. Pattern Jury Instructions
`
`Charges Prior to Trial
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`PJI 1:1 Introduction to Jury
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`PJI 1:2 Parties
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`PJI 1:3 Openings and Evidence
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`PJI 1:4 Objections, Motions, Exceptions
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`PJI 1:5 Summations
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`PJI 1:6 Function of Court and Jury
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`PJI 1:7 Consider Only Competent Evidence
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`PJI 1:8 Weighing Testimony
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`PJI 1:9 Conduct During Recess
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`PJI 1:11 Discussion With Others—Independent Research
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`PJI 1:12 Discussion by Others
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`PJI 1:13 Conversation With Parties or Attorneys
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`PJI 1:13A Alternate Jurors
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`PJI 1:14 Conclusion
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`Charge after Close of Evidence
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`PJI 1:20. Introduction
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`PJI 1:21. Review Principles Stated
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`PJI 1:22. Falsus in Uno
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`PJI 1:23. Burden of Proof
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`PJI 1:24. Return to Courtroom
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`PJI 1:25. Consider Only Testimony and Exhibits
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`PJI 1:25a. Juror’s Use of Professional Expertise
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`PJI 1:26. Five-Sixths Verdict
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`PJI 1:27. Exclude Sympathy
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`PJI 1:28. Conclusion
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`PJI 1:29. Alternate Jurors
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`PJI 1:90. General Instruction—Expert Witness
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`PJI 4:1. Contracts—Elements (AS MODIFIED)
`
`Both parties seek to recover damages for breach of contract. The parties entered into a written
`contract of sale of 69 Tweed Boulevard, Upper Grandview, NY. Plaintiffs claim that they
`performed all of the obligations on their part and that Defendant breached the contract by failing
`and refusing to close the transaction without justification. Defendant claims that the Plaintiffs
`because they could not deliver, at the time they set for closing, the property as described in the
`contract Schedule A with insurable or marketable title. If you find that Plaintiffs performed all of
`the obligations on their part and that Defendant breached the contract by failing and refusing to
`close the transaction without justification, you will find for the Plaintiffs and the Plaintiffs will be
`entitled to retain the down payment. If you find that the Plaintiffs because they could not deliver,
`at the time they set for closing, the property as described in the contract Schedule A with insurable
`or marketable title, you will find for the Defendant and the Defendant will be entitled to the return
`of its down payment.
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`B. Additional Jury Instructions
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`Instruction:
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`The seller of a property must be ready, willing, and able to close title in accordance with the
`contract.
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`Authority:
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`Purcell v. Harper, 52 Misc. 2d 75, 275 N.Y.S.2d 152 (Ct. App. City Court of Albany 1966);
`Weintraub v. Rungmar Realthy Corp., 231 N.Y.S.2d 241 (Sup. Ct. Westchester County 1962).
`
`
`Instruction:
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`The seller of a property bears the burden of delivering title which a title company will approve and
`insure unconditionally and without exceptions.
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`

`

`Authority:
`
`Gindi v. Intertrade Int’l Ltd., 12 Misc.3d 1182(A), 824 N.Y.S.2d 762 (Sup. Ct. New York County
`2006). See also, Gargano v. Rubin, 200 A.D.2d 554, 606 N.Y.S.2d 314 (2d Dep’t 1994); 6086
`Strickland Associates, LLLC v. SSJ Dev. of Mill Basin Viii, LLLC, Index No. 601890/08 (Sup.
`Ct. New York County June 3, 2009); Lisenenkov v. Kaszirer, 13 Misc.3d 1184, 827 N.Y.S.2d 579
`(Sup. Ct. New York County 2006).
`
`
`Instruction:
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` A
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` seller is obligated to provide insurable title to a purchaser as the purchaser’s title company,
`alone, would be willing to insure.
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`Authority:
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`Kopp v. Barnes, 10 A.D.2d 532, 204 N.Y.S.2d 860 (2d Dep’t 1960).
`
`Instruction:
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`When a title company declines to insure title without an exception a purchaser is NOT required
`to prove that no other title company would insure the title without such exceptions.
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`Authority:
`
`Kopp v. Barnes, 10 A.D.2d 532, 204 N.Y.S.2d 860 (2d Dep’t 1960); Lisenenkov v. Kaszirer, 13
`Misc.3d 1184, 827 N.Y.S.2d 579 (Sup. Ct. New York County 2006).
`
`Instruction:
`
`
`The words 'more or less' appearing in the legal description of said property do not permit a 13
`foot or more differential in a boundary. To allow such words to cover any substantial alteration
`of boundary and measurements would be to defeat the true purpose of all legal descriptions
`affecting real property.
`
`Authority:
`
`Purcell v. Harper, 52 Misc. 2d 75, 275 N.Y.S.2d 152 (Ct. App. City Court of Albany 1966).
`
`Instruction:
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`It is not material whether the refusal of purchaser's title company to insure title was erroneous or
`unreasonable.
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`Authority:
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`Kopp v. Barnes, 10 A.D.2d 532, 204 N.Y.S.2d 860 (2d Dep’t 1960); Lisenenkov v. Kaszirer, 13
`Misc.3d 1184, 827 N.Y.S.2d 579 (Sup. Ct. New York County 2006); Gittlitz v. Lewis, 9 Misc.2d
`134, 215 N.Y.S.2d 290 (Sup. Ct. 1961).
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`Instruction:
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` A
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` seller of property also bears the burden of conveying good and marketable title.
`
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`Authority:
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`Goldstein v. Stern, 32 Misc.2d 779, 781, 224 N.Y.S.2d 816, 819 (Sup. Ct. 1962); Wates v.
`Crandall, 144 N.Y.S.2d 211, 216 (Sup. Ct. Queens County 1955).
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`
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`Instruction:
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`The seller’s burden of producing insurable title must happen prior to the seller declaring ‘time of
`the essence’ or holding the purchaser in default.
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`Authority:
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`Gindi v. Intertrade Int’l Ltd., 12 Misc.3d 1182(A), 824 N.Y.S.2d 762 (Sup. Ct. New York
`County 2006); Purcell v. Harper, 52 Misc. 2d 75, 275 N.Y.S.2d 152 (Ct. App. City Court of
`Albany 1966); Weintraub v. Rungmar Realthy Corp., 231 N.Y.S.2d 241 (Sup. Ct. Westchester
`County 1962).
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`Instruction:
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`If the seller is unable to meet its burden to provide insurable, good, and marketable title, then the
`purchaser is entitled to obtain the return of their deposit.
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`

`

`
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`Authority:
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`Nowak v. Rametta, 43 A.D.3d 1120, 843 N.Y.S.2d 150 (2d Dep’t 2007); Goldstein v. Stern, 32
`Misc.2d 779, 781, 224 N.Y.S.2d 816, 819 (Sup. Ct. 1962); Wates v. Crandall, 144 N.Y.S.2d 211,
`216 (Sup. Ct. Queens County 1955).
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`Instruction:
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`The purchaser’s motives in seeking to rescind the contract for a title defect are immaterial.
`
`Authority:
`
`Goldstein v. Stern, 32 Misc.2d 779, 781, 224 N.Y.S.2d 816, 819 (Sup. Ct. 1962); Weintraub v.
`Rungmar Realty Corp., 231 N.Y.S.2d 241 (Sup. Ct. Westchester County 1962).
`
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`Instruction:
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`Recovery for either one of the parties in this case is limited to a maximum of $162,000, which is
`the amount of the deposit held in escrow.
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`Authority:
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`Decision & Order, ECF Doc. 90 at 5 (“Based on the Plaintiff's Affidavit admitting the validity of
`the liquidated damages clause in the Contract of Sale, the Court finds that the Plaintiffs’ recovery
`is limited to the deposit of $162,000 as defined in the liquidated damages clause.”); Truck Rent-
`A-Center, Inc. v. Puritan Farms 2nd, Inc., 41 N.Y.2d 420, 361 N.E.2d 1051, 393 N.Y.S.2d 365
`(1977); Wirth & Hamid Fair Booking v. Wirth, 265 N.Y. 214, 192 N.E. 297 (1934); Mosler Safe
`Co. v. Maiden Lane Safe Deposit Co., 199 N.Y. 479, 93 N.E. 81 (1910); McCready v.
`Lindenborn, 172 N.Y. 400, 65 N.E. 208 (1902); Federal Realty Ltd Partnership v. Choices
`Women's Med. Ctr., 289 A.D.2d 439, 735 N.Y.S.2d 159 (2d Dep't 2001); X.L.O. Concrete Corp.
`v. John T. Brady and Co., 104 A.D.2d 181, 482 N.Y.S.2d 476, 479 (1st Dep't 1984).
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`VERDICT SHEET
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`1. Did plaintiffs meet their burden of proving by a preponderance of the evidence that they
`could deliver, at the time they set for closing, the property as described in the contract
`Schedule A with insurable or marketable title?
`
`Yes_ No _
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`
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`Dated: November 1, 2017
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`New City, New York
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`________/s/____________________
`Judith Lisa Bachman, Esq.
`Attorney for Pine Island Corporation
`254 South Main Street, Suite 306
`New City, New York 10956
`845-639-3210
`
`

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