90 A.D.2d 118 | N.Y. App. Div. | 1982
On June 27, 1980, plaintiff entered into a written contract with defendants Tannen and Biblo, the owners of all of the issued and outstanding shares of common stock of 63-4th Avenue Realty Corporation, for the purchase of their stock. The corporation’s sole asset was the real property located at 63 4th Avenue, New York, New York.
Plaintiff paid $25,000 upon execution of the contract,
The contract contained the following provision: “Default by buyer. If on the date set for the closing, or on any adjourned date, mutually agreed to, the sellers are ready, willing and able to carry out and perform this Agreement, and the buyer refuses or is unwilling to perform his obligations, then in such event the amount paid on account of the purchase price * * * shall be retained by the sellers as liquidated damages, and this Agreement shall thereupon become void, and neither party shall have any further rights against the other.” The contract also provided that “[t]his [agreement may not be modified except by an instrument in writing duly executed by the parties.”
The closing did not take place as scheduled. Instead, according to plaintiff, some time in August of 1980, the sellers’ attorney consented to an adjournment, sine die, so that plaintiff could obtain the necessary financing to complete the transaction. While denying that plaintiff ever requested an adjournment from him either before or after September 1, 1980, the sellers’ attorney concedes that he had a conversation with plaintiff in mid-September in
According to plaintiff, it was not until December 11, 1980, after he had finally obtained the financing commitment he had sought and when he attempted to set,a closing date, that the sellers’ attorney advised him that the sellers had finally decided not to close with him. Plaintiff thereupon commenced this action for specific performance against the sellers, naming 63-4th Avenue Realty Corp. as a party defendant. He also filed a lis pendens against the real property.
On plaintiff’s motion for a preliminary injunction restraining the sellers from transferring or selling the real property and the corporate stock during the pendency of the action, Special Term, finding the sole question to be whether an adjournment of the contract closing date had been granted, referred the matter for a hearing. After the hearing the referee reported that “[t]he testimony was conflicting and subject to misunderstanding” but she found the writing controlling in any event, since the contract barred any modification thereof except by a writing signed by the parties. Accordingly, the referee recommended a resolution of the issue in defendants’ favor. Special Term confirmed the report, denied the motion for a preliminary injunction, granted defendants’ companion motion to dismiss the complaint, canceled the lis pendens, and continued the undertaking which plaintiff had furnished in connection with the grant of a temporary restraining order. This appeal followed.
Contrary to defendants’ argument and Special Term’s dictum, the referee never found that the sellers’ attorney had not consented to an adjournment. In reviewing the evidence the referee merely recounted the attorney’s testi
In holding that the contract itself prohibits any oral modification or extension of the closing date, Special Term relied upon subdivision 1 of section 15-301 of the General Obligations Law,
In Rose v Spa Realty Assoc. (42 NY2d 338, 343-344), the Court of Appeals had occasion to delineate the distinction between these two exceptions:
“Where there is partial performance of the oral modification sought to be enforced, the likelihood that false claims would go undetected is similarly diminished. Here, too, the court may consider not only past oral exchanges, but also the conduct of the parties. But only if the partial performance be unequivocally referable to the oral modification is the requirement of a writing under section 15-301 avoided * * *
“There is, however, another qualification to the mandates of section 15-301. Analytically distinct from the*122 doctrine of partial performance, there is the principle of equitable estoppel. Once a party to a written agreement has induced another’s significant and substantial reliance upon an oral modification, the first party may be estopped from invoking the statute to bar proof of that oral modification * * * Comparable to the requirement that partial performance be unequivocally referable to the oral modification, so, too, conduct relied upon to establish estoppel must not otherwise be compatible with the agreement as written”.
In our view the allegations contained in plaintiff’s affidavit submitted in support of his cross motion to reject the referee’s report
More specifically, plaintiff states that on September 4, 1980 a Consolidated Edison representative, at his request and with defendant Bible’s permission, inspected the premises for the purpose of installing gas service; that in October 1980, plaintiff and his plumber and various workmen entered the premises to install a gas sleeve in the basement at which time one of the sellers, Biblo, who was present, upon being advised of the reason for their presence, indicated that he had no objection since the building would soon be plaintiff’s; and, that subsequent to September, 1980, plaintiff ran advertisements in both the New York Times and the Village Voice for the rental of space at
Moreover, we find it significant that at no time after September 1, 1980, did the sellers’ attorney ever advise plaintiff, either orally or in writing, that he was in default and that the contract was terminated. (Cf. Cliffs Mgt. Corp. v Great Eastern Mgt. Corp., 85 AD2d 584, 585.) Rather, in mid-September, two weeks after the contract closing date, he was advising plaintiff that he would try to persuade his clients, who were apparently concerned, not with the passage of the contract closing date without a closing, but, rather, with plaintiff’s ability to carry the notes and the prospect of an eventual foreclosure, to go through with the transaction. Plaintiff received the same assurances throughout October. Plaintiff’s attorney testified that on two separate occasions in November the sellers’ attorney advised him that he would try to convince the sellers to close. This testimony raises serious questions as to whether the sellers considered plaintiff to be in default on September 1, 1980, as they now claim, or whether, as plaintiff’s proofs seem to suggest, they were primarily interested in casting about for a better deal while holding onto the June 27, 1980 contract as a fallback position.
In all of the circumstances, it seems to us that plaintiff’s post-September 1,1980 activities at the premises, with the knowledge and consent of the sellers, if established, could be found by the trier of the facts to constitute partial performance which is unequivocably referable to an oral agreement, express or at least implied, to adjourn the closing so that plaintiff might have more time to secure the less onerous financing which he was seeking. Alternatively, the sellers’ conduct in knowingly permitting plaintiff to expend time, effort and money after the September 1, 1980 closing date could, if established, constitute an equitable estoppel. The sellers’ conduct in allowing plaintiff onto the premises after September 1,1980, for the purposes alleged, is not compatible with the contract as written unless the parties had at some point agreed that the closing need not take place on that date.
The equitable rule that absent a contrary intent time is not of the essence is invoked usually, but not exclusively, in matters involving the sale of real property. (Mercantile Nat. Bank v Heinze, 75 Misc, at p 562.) In the appropriate case, an action for specific performance of a contract for the sale of personalty will lie. “The rule is that, as to contracts pertaining to personal property, a party should be confined to his action for damages, unless it appears that he is entitled to the thing contracted for in specie, which to him has some special value and which he cannot readily obtain in the market, or in cases where it is apparent that compensation in damages would not furnish a complete and
We were advised at the argument that the premises have since been conveyed, a development which, although not part of the record, renders academic plaintiff’s request for injunctive relief and reinstatement of the lis pendens. In this connection we note also that the complaint pleads a cause of action for specific performance only, a form of relief which, with this recent development, is no longer available. Thus, plaintiff may be left with only a claim for damages. Where a plaintiff succeeds in proving his entitlement to equitable relief, and the granting of such relief “appears to be impossible or impracticable, equity may award damages in lieu of the desired equitable remedy.” (Doyle v Allstate Ins. Co., 1 NY2d 439, 443; see Valentine v Richardt, 126 NY 272, 277; Murtha v Curley, 90 NY 372; Van Rensselaer v Van Rensselaer, 113 NY 207, 214; Bell v Merrifield, 109 NY 202, 207.)
Accordingly, the order, Supreme Court, New York County (Maresca, J.), entered September 10,1981, which, inter alia, confirmed the referee’s report and dismissed the complaint, should be modified, on the law, with costs and disbursements to plaintiff, the motion to confirm the referee’s report and to dismiss the complaint denied, the motion to reject the referee’s report granted, and, except as thus modified, affirmed.
Markewich, Bloom and Kassal, JJ., concur.
Order, Supreme Court, New York County, entered on September 10,1981, unanimously modified, on the law, the motion to confirm the referee’s report and to dismiss the
. Although the contract provided for the payment of $25,000 on execution, only $15,000 was paid at that time. The balance of $10,000 was subsequently paid.
. This section provides: “A written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent.”
. Although not part of the transcript of the referee’s hearing, these allegations were properly before the court even on the motion to reject the report since the referee’s recommendation avoided the framed factual issue, to which the testimony was limited and turned on a point of law, to which plaintiff had a right to respond factually.