OPINION OF THE COURT
In this аction, plaintiff seeks to recover a $52,500 down payment on certain real property, together with the reasonable costs of a title search. Defendant counterclaims for specific performаnce of the real property contract. Initially, Special Term had granted summary judgment to plaintiff, but the Appellate Division found that a question of fact precluded such relief and reversed (
The issue which we are called upon to review is whеther defendant sufficiently complied with a contractual provision requiring him to furnish a recordable mortgage "estoppel certificate” to establish the outstanding balance of a mortgage encumbering the subjеct real property.
Oliver Grace, the. plaintiff, entered into a contract with defendant Nappa to purchase certain real property. Upon execution, plaintiff paid defendant $52,500 with $333,981.50 payable on closing. Additionally, plaintiff was to take the premises subject to a mortgage in the amount of $138,518.49. The contract obligated defendant to produce a certificate "executed and acknowledged by the holder of such mortgage and in form for recording, certifying as to the amount of the unpaid principal and interest thereon, date of maturity thereof and rate of interest thereon”. The parties chose specifically to mаke time "of the essence as against both the Seller and Purchaser”.
Having failed to obtain the estoppel certificate by law day, defendant attempted to prove the outstanding balance of the mortgage by producing canceled checks and an amortization schedule. To explain his failure to procure the certificate, defendant also produced a letter from the mortgagee which indicated, among other things, that the latter did not personally consider the mortgage to be "in good standing”. Not satisfied with the substitute, plaintiff steadfastly refused to accept anything other than the estoppel statement and refused dеfendant’s requests for an adjournment of closing. At the meeting set for closing, according to defendant’s attorney, his client offered to satisfy the existing mortgage on the parcel and take back a purchase-monеy mortgage on the same terms. Defendant did not actually pay off the outstanding mortgage and deliver or record a satisfaction piece, nor did he tender a purchase-money mortgage and demand that plаintiff accept a conveyance. As another alternative, defendant suggested placing a sum of money in escrow, but no tender of performance was made. Other alternatives were discussed, none of whiсh met with plaintiff’s approval and finally the closing was aborted.
Following trial, Supreme Court found for plaintiff, reasoning that defendant had not complied with the estoppel certificate requirement, and had proposed no substitute performance which could have been completed on law day. On reversаl, the Appellate Division held that a “reasonable purchaser” would have accepted the canceled checks and amortization schedule as adequate evidence of the mortgage bаlance. It further held that there was no proof that defendant’s proposals could not be implemented on the date of closing, and concluded that plaintiff was bound “to accept adequate proоf of the balance of the mortgage, since he was buying real property, not an estoppel certificate”.
Generally, parties to the sale of real property, like signatories of any agreement, are free to tailor their contract to meet their particular needs and to include or exclude those provisions which they choose. Absent some indicia of fraud or other circumstances warranting equitable intervention, it is the duty of a court to enforce rather than reform the bargain struck (see, e.g., Laba v Carey,
When a provision that time is to be of the essence is inserted in a real property contract, the date established as the law day takes on especial significance. Ordinarily, the law will allow the vendor and vendee a reasonable time to рerform their respective obligations, regardless of whether they specify a particular date for the closing of title (see, e.g., Cohen v Kranz,
Without doubt, defendant did not comply with the contract insofar as it required a particularized mortgage estoppel instrument. In our opinion, this constituted a material breach of the contract, giving rise to a right of rescission on the part of the purchaser (see, generally, Wates v Crandall,
Although not expressly required by the contract of sale, the lower court held that the vendee was entitled to a recordable estoppel certificate: "He was entitled tо demand, if the mortgage had been reduced to the extent claimed, such evidence of the fact as would enable him to spread the same upon the record, so that * * * the records would show precisely the еxtent to which the mortgage was a lien, and it does not seem that anything less than this would satisfy the requirements of the law” (
In light of Oppenheimer, it can hardly be said that a specific provision entitling the vendee to an estoppel cеrtificate is not a material term of the contract. Indeed, the soundness of this conclusion is underscored by the circumstances of the instant case. At the closing, defendant produced a letter in which the mortgagee, his hostility to the vendor thinly veiled, stated
Defendant’s failure to provide the certificate was thus a material breach of the contraсt, excusing plaintiff’s performance (see, e.g., 3A Corbin, Contracts, §§ 663, 665) and giving him the right to recover his down payment and the reasonable cost of a title search (see, e.g., McAndrew v Lanphear,
In sum, since defendant materially breаched the contract of sale, he may not be awarded specific performance, and plaintiff is entitled to prevail in his action for return of the down payment. This result flows from the provisions which the parties included in their compact.
The order of the Appellate Division should be reversed, with costs, and the judgment of the Supreme Court, Nassau County reinstated. The certified question is answered in the negative.
Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur with Chief Judge Cooke.
Order reversed, etc.