17 A.D.2d 840 | N.Y. App. Div. | 1962
In an action by a vendee for specific performance of a contract for the sale of real property, the defendant vendor appeals from an order of the Supreme Court, Nassau County, dated January 8, 1962, which granted plaintiff’s motion for summary judgment, pursuant to rule 113 of the Rules of Civil Practice. Order affirmed, with $10 costs and disbursements. The contract of sale was conditioned upon the receipt by plaintiff of a zoning variance to permit the use of the premises as a skating rink. Thereafter, in order to enable plaintiff to make a second application for a variance, the date for closing was extended by mutual consent. Plaintiff did make such second application, but it subsequently entered into a contract for the sale of the property to a third party and withdrew the second application. In opposition to the motion for summary judgment, defendant contended in substance: (1) that, because the zoning variance had not been obtained, the contract was terminated in accordance with its provisions; and (2) that, since plaintiff had not disclosed to defendant its pending negotiations with the third party and had represented