29 A.D.2d 1029 | N.Y. App. Div. | 1968
Cross appeals from an order of the Supreme Court at Special Term, entered April 17, 1967, in Ulster County, which denied plaintiff Royce’s motion for a temporary injunction; granted defendant Rymkevitch’s motion for summary judgment on Royce’s claim for specific performance; denied Rymkevitch’s motion for summary judgment regarding Royce’s claims for damages; and granted the motion of defendants Goodman, Hyman and Brafman for summary judgment dismissing the complaint against them. On July 26,1965 the plaintiff Royce and the defendant Rymkeviteh entered into a contract for the purchase of land in the Town of Woodstock. The contract price was $22,500 and the vendor, Rymkeviteh, agreed that the consideration was for not less than 200 acres. Royce had the option of having a survey performed and Rymkeviteh agreed that if it showed less than 200 acres, the purchase price would be reduced $112.50 for each acre less than 200. He also agreed that if “after 10 days’ notice to the party of the first part [Rymkeviteh], the party of the second part [Royce] shall be unable to secure the services of a duly licensed surveyor to survey said premises for not more than $1500.00, then the party of the first part shall pay the cost of such survey in excess of $1500.00.” It was agreed that Rymkeviteh would deliver title insurance to Royce. Closing was set for August 30, 1965 or such earlier date as the parties may agree upon. The closing never took place and Royce and Rymkeviteh are in dispute as to the events causing this failure. Royce began a prior action against Rymkeviteh for specific performance and damages on October 14, 1965, but this action was not pursued. Thereafter, there was correspondence between the attorneys for Royce and Rymkeviteh, as well as alleged but denied negotiations between the principals. On June 10, 1966 Rymkeviteh sold the property to the defendants Goodman, Hyman and Brafman. Royce then began the present action against Rymkeviteh and Goodman for specific performance and damages for breach of contract, and to restrain waste on the premises, and against Rymkeviteh for fraud. Royce moved for a temporary injunction and defendants moved for summary judgment. In our view the trial court was correct in denying Rymkevitch’s motion for summary judgment on Royce’s claims for damages. Summary judgment must be denied if “ any party shall show facts sufficient to require a trial of any issue of fact other than an issue as to the amount or the extent of the damages.” (CPLR 3212, subd. [b].) There are clearly triable issues of fact presented regarding fault for not closing title in the sale to Royce. Royce alleged that he consulted a surveyor who examined the property and wanted $2000-$2500 for the survey; that Royce so informed Rymkeviteh; and that the latter soon thereafter told Royce that, regardless of the contract, he would not pay any extra survey costs. It also appears that Rymkeviteh did not obtain the title insurance required of him at the closing. Without a survey, the sale price could not be determined, since the acreage of the parcel was unknown and no title insurance could be obtained. On the other hand, Rymkeviteh alleges that the closing and preparations therefor did not go forward because, despite the descriptions from prior deeds which were incorporated by reference in the sales contract and indicated it concerned two noncontiguous parcels, Royce wanted to change the terms of the transaction. These are only some of the many conflicting factual statements contained in the affidavits, which also include an allegation of waiver or adjournment by Rymkeviteh of the closing date and an allegation and denial of fraud by Rymkeviteh in misrepresenting the property before the contract of sale was entered into. Similarly, there are disputed facts regarding the negotiations and other activities of Royce and Rymkeviteh after the specified closing date. The accuracy of all of these