81 A.D.2d 904 | N.Y. App. Div. | 1981
— In an action to recover damages for breach of contract, defendant appeals from an order and judgment (one paper) of the Supreme Court, Orange County, entered December 22, 1980, which, inter alia, granted plaintiff’s motion for summary judgment. Order and judgment affirmed, with $50 costs and disbursements. The disputed clause of the contract provides, inter alia, that the agreement shall be “subject only to the requirement that documentation be prepared sufficient in the opinion of both parties as shall be needed to transfer the interests of Empire in the Leisure Time loan to United” (emphasis supplied). The clause is unambiguous and refutes defendant’s claim that its obligations thereunder were intended to be conditioned upon the successful completion of negotiations with third parties. In addition, defendant’s belated contention that plaintiff had failed to fulfill its contractual obligation to “close” the agreement within the time limited in paragraph 4 thereof is similarly insufficient to defeat summary judgment, since the only evidence submitted on the issue reveals a mutual waiver of the 30-day requirement through the continuing efforts of both parties, without protest, to conclude the agreement well after the contractual time period had expired (cf. Schenectady Steel Co. v Trimpoli Gen. Constr. Co., 43 AD2d 234, affd 34 NY2d 939). Titone, J.P., Gibbons, Gulotta and Margett, JJ., concur.
