59 N.Y.2d 770 | NY | 1983
Howard P. Aronson et al., as Trustees Under the Last Will and Testament of Edward Satenstein, Deceased, Appellants,
v.
Donald N. Riley, Individually and as Administrator of The Estate of Florence Chaloux, Deceased, Respondent.
Court of Appeals of the State of New York.
John B. Sherman, Sheldon Bunin and Mark V. Olsen for appellants.
Anthony Pasquantonio for respondent.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur.
*772MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court denying defendant's motion for summary judgment reinstated.
We conclude that the restrictive agreement between Edward Satenstein and the Chaloux' is ambiguous and that it cannot be determined as a matter of law on examination of the agreement alone whether transfer by intestate succession did or did not fall within the proscription that "[n]either of the grantees shall transfer or convey said premises to any person or corporation without first offering to sell and reconvey the above described premises to the grantor, his heirs or legal representatives". Use of the verb "transfer" expanded the connotation normally associated with the verb "convey". Involuntary transfers during the lifetime of the Chaloux' were expressly excluded from the proscription of the agreement; there was, however, no counterpart exclusion of involuntary transfers on death. Although express provision was made with respect to the first-refusal obligation during the lifetime of the Chaloux' (when it was applicable) and after the death of the survivor of the Chaloux' (when it was inapplicable), no explicit provision was made as to its application on the death of such survivor. The failure to make unmistakable provision *773 with respect to this inescapably foreseeable contingency, as could so easily have been done, results in an ambiguity.
In view of our conclusion that the agreement is ambiguous, defendant's motion for summary judgment should be denied inasmuch as plaintiff has tendered extrinsic evidence in admissible form sufficient to require a trial as to whether the parties intended by their agreement to accord to the grantor and his heirs the right to buy back the property on the death of the survivor of George and Florence Chaloux (see Hartford Acc. & Ind. Co. v Wesolowski, 33 N.Y.2d 169, 172; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 290-291).
Order reversed, with costs, and the order of Supreme Court, Westchester County, denying defendant's motion for summary judgment reinstated in a memorandum.
