104 A.D.2d 442 | N.Y. App. Div. | 1984
— In an action by a contract vendee for specific performance of a contract for the sale of real property, plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Luciano, J.), dated May 16, 1983, which denied its motion for summary judgment and granted defendants’ cross motion for summary judgment, and (2) an order of the same court, dated August 12,1983, which denied plaintiff’s motion to renew.
Order dated August 12, 1983, reversed, motion to renew granted and upon renewal the order dated May 16, 1983 is vacated, and the motion and cross motion for summary judgment are denied.
Appeal from the order dated May 16, 1983 dismissed as academic in light of the determination on the appeal from the order dated August 12, 1983.
Plaintiff is awarded one bill of costs.
On June 30,1981, plaintiff entered into a contract to buy from the defendants property identified as lots 1 through 5 on a map entitled “preliminary Map of Hilltop Estates”. The sale was conditioned upon the purchaser securing final subdivision approval of eight lots shown on the preliminary map, which included two lots to be retained by the defendants and one lot previously sold by them to a third party. The contract also should be canceled by either party if subdivision approval were not obtained within eight months. When less than six months had expired and plaintiff had only obtained preliminary and not final subdivision approval, defendants requested that title close on or before December 30, 1981. At the closing, plaintiff produced a second map containing somewhat different boundary
While conditions relating to subdivision approval in a real estate contract are usually for the benefit of the purchaser, who can waive them if he so desires (BPL Dev. Corp. v Cappel, 86 AD2d 591; see Poteralski v Colombe, 84 AD2d 887), approval of the instant subdivision was for the benefit of the sellers as well since certain lots shown in the plat were to be retained by them. Thus, the condition relating to subdivision approval could not be waived unless both parties agreed (see Matter of Marks, 33 AD2d 1029; Woodlark Constr. Corp. v Callahan, 275 App Div 857; 1490 Realty Corp. v McCabe, 77 NYS2d 482, affd 273 App Div 997, mot for lv to app den 274 App Div 782) or unless there was a waiver by conduct. In this respect, Special Term failed to consider the claim that the sellers waived the condition by seeking to close after the planning board conditionally approved a preliminary plat. An issue of fact exists as to whether defendants waived the contractual condition (see BPL Dev. Corp. v Cappel, supra; Poteralski v Colombe, supra; see, also, De Freitas v Holley, 93 AD2d 852).
We also discern a fact issue in the dispute as to whether lots 1 through 5 on the second map contained more acreage than they
These circumstances mandate a trial. Lazer, J. P., Mangano, Gibbons and Niehoff, JJ., concur.