75 A.D.2d 796 | N.Y. App. Div. | 1980
In an action to rescind a contract for the sale of real property and for refund of the down payment, defendants appeal from a judgment of the Supreme Court, Orange County, dated May 8, 1979, in favor of the plaintiffs and against them, after a nonjury trial. Judgment affirmed, with costs. On September 8, 1976 plaintiffs entered into a contract with defendants Philip and Antoinette Marcantonio for the purchase and sale of certain real property improved with a vacation home. At or about the time the contract was signed, plaintiffs arranged for a title search and land survey, and forwarded their down payment to defendants Marcantonios’ attorney, defendant Guidone, to hold in escrow. The contract contained, in addition to the usual clauses, including a prohibition against oral modification, a provision that if a survey, title search or other investigation were to reveal facts materially affecting marketability of title to the premises, plaintiffs would have a right to cancel the. contract by sending notice by certified mail to defendant Guidone, at his office address, postmarked not later than September 30, 1976. As the cancellation date approached it became apparent that the survey would not be ready until some time in October. Plaintiffs’ attorney notified defendant Guidone of this development, and Guidone orally authorized an extension of the cancellation period until after completion of the survey. The survey, when completed, revealed an encroachment by a State highway right of way which Trial Term reasonably concluded substantially impaired the marketability of the property. Plaintiffs’ attorney wrote to defendant Guidone, informing him of the survey results and requesting a refund of plaintiffs’ down payment. Mr. Guidone replied by setting a closing date and, when plaintiffs did not appear, considering them in default. The Marcantonios later sold the property to
