Cloke v. FindlanCloke v. Findlan
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: October 25, 2018
Calendar Date: September 11, 2018
Before: Garry, P.J., Clark, Mulvey, Rumsey and Pritzker, JJ.
The Law Offices of Keith R. Betensky, Bedford (Keith R. Betensky of counsel), for appellant.
Law Offices of Jeffrey S. Greene, PC, White Plains (Jeffrey S. Greene of counsel), for respondent.
MEMORANDUM AND ORDER
Mulvey, J.
Appeals (1) from an order of the Supreme Court (Schick, J.), entered April 3, 2017 in Sullivan County, which, among other things, denied defendant‘s motion for summary judgment dismissing the complaint, and (2) from an order of said court, entered July 28, 2017 in Sullivan County, which, upon reargument, among other things, granted plaintiff‘s cross motion for summary judgment on his claim for specific performance.
In July 2015, plaintiff entered into a contract with defendant for the purchase of an approximately 111-acre parcel of real property, known as Hillig Castle, located in the Town of Liberty, Sullivan County for $265,000. The contract required plaintiff to make a nonrefundable $35,000 down payment and, beginning in September 2015, to make 12 nonrefundable monthly installment payments of $5,000, with the remaining balance of $170,000 to be paid at the closing. A rider to the contract provided that, after tender of the initial down payment, plaintiff would have exclusive possession of the property as a licensee, entitling him to make any improvements and/or repairs to the premises. Pursuant to paragraph 42 of the rider, plaintiff was also required to pay the real property taxes on the premises by certain specified dates. This provision of the rider further provided that, in the event of plaintiff‘s failure to timely pay such property taxes, defendant shall be entitled to cancel the contract and retain all nonrefundable payments made by plaintiff to that point.
Initially, we reject plaintiff‘s contention that defendant‘s arguments pertaining to the April 2017 order are not properly before us (see GMMM Westover LLC v New York State Elec. & Gas Corp., 155 AD3d 1176, 1178 n 5 [2017]). Further, while the denial of a reargument motion is not appealable as of right (see Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1184 [2015], lv denied 25 NY3d 912 [2015]), because Supreme Court addressed and rejected the merits of defendant‘s claim, we “deem the court to have granted reargument and adhered to its prior decision” on defendant‘s summary judgment motion
“The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent[, and] [t]he best evidence of what parties to a written agreement intend is what they say in their writing” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks and citations omitted]; see 2138747 Ontario, Inc. v Samsung C & T Corp., 31 NY3d 372, 377 [2018]; Marin v Constitution Realty, LLC, 28 NY3d 666, 673 [2017]). Thus, “‘a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms‘” (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009], quoting Greenfield v Philles Records, 98 NY2d at 569; accord Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 559-560 [2014]; see Matter of Banos v Rhea, 25 NY3d 266, 286 [2015]). Adherence to these precepts is “particularly important in the context of real property transactions, where commercial certainty is a paramount concern, and where . . . the instrument was negotiated between sophisticated, counseled business people negotiating at arm‘s length” (South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 277 [2005] [internal quotation marks and citations omitted]; accord Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; Concord Assoc., L.P. v EPT Concord, LLC, 130 AD3d 1404, 1407-1408 [2015], lv denied 26 NY3d 912 [2015]; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).
Here, the clear and unambiguous language of paragraph 42 of the rider provides that, “[c]ommencing with the 2015-16 School Taxes due on September 30, 2015, [plaintiff] shall pay the real estate taxes during the month when due and submit proof of payment to [defendant]. The School Tax payment is due no later than September 30, 2015, and the Town and County Tax payment is due no later than January 31, 2016.”3 The rider further provides that, “[i]n the event that [plaintiff] fails to timely pay these taxes and submit proof of payment to [defendant] . . ., [defendant], at her option, may cancel this Contract by giving notice to [plaintiff] . . ., retain all monies
To the extent that plaintiff suggests that defendant waived her right to enforce paragraph 42 of the rider, we disagree. “[W]aiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it. Such a waiver must be clear, unmistakable and without ambiguity” (Matter of Professional Staff Congress-City Univ. of N.Y. v New York State Pub. Empl. Relations Bd., 7 NY3d 458, 465 [2006] [internal quotation marks, ellipsis and citations omitted]; see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]). Even viewed in the light most favorable to plaintiff, as the nonmoving party on defendant‘s motion (see De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; see Carroll v Rondout Yacht Basin, Inc., 162 AD3d 1150, 1152 [2018], appeal dismissed ___ NY3d ___ [Oct. 11, 2018]), the evidence fails to establish that defendant ever accepted payment under the contract after declaring plaintiff in default or that she otherwise engaged in any conduct that would have
As defendant thus established plaintiff‘s default under the contract and plaintiff failed to raise any triable issue of fact, plaintiff‘s cause of action for specific performance should have been dismissed (see Grace v Nappa, 46 NY2d at 567; Satra Realty, LLC v Knovel Corp., 93 AD3d at 1130; Sherman v Real Source Charities, Inc., 41 AD3d 946, 947 [2007]; Mosdos Oraysa, Inc. v Sausto, 13 AD3d at 841-842). We further conclude, however, that, notwithstanding plaintiff‘s material breach, defendant is not entitled to relief in the form of cancellation of the contract and retention of all payments made by plaintiff thereunder.
“[T]he execution of a[n installment] contract for the purchase of real estate and the making of a part payment gives a contract vendee equitable title to the property and an equitable lien in the amount of the payment” (Heritage Art Galleries v Raia, 173 AD2d 441, 441 [1991] [internal quotation marks and citations omitted]; see Elterman v Hyman, 192 NY 113, 119-120 [1908]; Edwards v Van Skiver, 256 AD2d 957, 958 [1998]; Bean v Walker, 95 AD2d 70, 72 [1983]). The contract vendor, in turn, “holds the legal title in trust for the vendee, subject to the vendor‘s equitable lien for the payment of the purchase price in accordance with the terms of the contract” (Bean v Walker, 95 AD2d at 74; see Edwards v Van Skiver, 256 AD2d at 958). “Accordingly, the vendee under a land sale contract has acquired an interest in the property that must be extinguished before the vendor can resume possession, notwithstanding whether a provision in the contract provides that in the event of the vendee‘s uncured default . . ., the vendor has the right to declare the contract terminated and repossess the premises. A vendor may not enforce his [or her] rights by an action in ejectment, but must instead proceed to foreclose the vendee‘s equitable title or bring an action at law for the purchase price” (Russell v Pisana, 164 AD3d 704, 705 [2018] [citation omitted]; see Heritage Art Galleries v Raia, 173 AD2d at 441-442; Bean v Walker, 95 AD2d at 74).
Plaintiff, having made substantial payments to defendant pursuant to the installment land sale contract at issue, acquired equitable title to the property and an equitable lien in the amount of all payments made pursuant to the contract. Thus, despite plaintiff‘s default under the contract, defendant cannot obtain relief under the provision of the rider that
The parties’ remaining contentions, including their respective requests for an award of costs and sanctions against the other, have been reviewed and rejected.
Garry, P.J., Clark, Rumsey and Pritzker, JJ., concur.
ORDERED that the orders are modified, on the law, without costs, by reversing so much thereof as granted plaintiff‘s cross motion for summary judgment on his cause of action for specific performance and denied defendant‘s motion for summary judgment dismissing said cause of action; cross motion denied to said extent, motion granted to said extent and plaintiff has equitable title to the property and an equitable lien as set forth herein; and, as so modified, affirmed.