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Judnick Realty Corp. v. 32 West 32nd Street Corp.

Court of Appeals of New York

January 12, 1984, Argued ; February 16, 1984, Decided

No Number in Original

Opinion

 [*822]   [**132]   [***955]  OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

 [***956]  The limitation of liability clause of the contract (par 22) became operative only if the seller was unable to convey in accordance with the terms of the contract. One of the terms of the contract, however, was [****6]  that the purchaser could declare the contract null and void if by May 15, 1979 the  [**133]  seller was unable to make the second floor loft available, vacant and free of tenancies or occupancy (rider, par 1) and the purchaser was also given "the right to extend the date set forth in paragraph 1 to this rider at its sole option and discretion without declaring this contract null and void" (rider, par 12). Thus, the second floor tenant's continued occupancy would not make the seller unable to convey in accordance with the contract if the purchaser exercised its option to extend the paragraph 1 date for second floor vacancy, and in that event paragraph 22 of the contract would afford the seller no protection. Such is the plain meaning of the three contract provisions when read together as they must be. That the original closing date fixed by the contract was May 31, 1979 and that rider paragraph 12 spoke of extension of the date in paragraph 1 rather than of the closing date does not militate against that interpretation, for extension of the paragraph 1 vacancy date would be meaningless if the closing date were not by reason of the exercise of the option also extended. Moreover,  [****7]  nothing in the contract made time of the essence.

The suggestion that paragraph 12 of the rider was intended to afford the purchaser the option to extend the vacancy date only once is, in the face of the parol evidence rule and the merger clause contained in the contract, not sustainable, the contract not being ambiguous in this respect but, in any event, the conclusory statements in the affidavit of the attorney who negotiated the contract for the seller are insufficient to raise a triable issue of fact in this respect ( Freedman v Chemical Constr. Corp., 43 NY2d 260; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285).

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61 N.Y.2d 819 *; 462 N.E.2d 131 **; 473 N.Y.S.2d 954 ***; 1984 N.Y. LEXIS 4086 ****

Judnick Realty Corporation, Respondent, v. 32 West 32nd Street Corp., Appellant

Prior History:  [****1]  Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 22, 1983, which, by a divided court, affirmed an order of the Supreme Court at Special Term (Herman Cahn, J.), entered in New York County, granting plaintiff's motion for summary judgment, denying defendant's cross motion to cancel the notice of pendency filed by plaintiff against the real property which was the subject of the instant action and to have plaintiff's attorneys disqualified from the action, and directing that defendant specifically perform the contract of sale between the parties for the subject real property.

On April 30, 1979, a contract was entered into whereby defendant agreed to sell and plaintiff agreed to purchase certain real property. The closing of title was originally to have taken place on May 31, 1979, but by mutual consent was twice rescheduled. The closing continued to be delayed because defendant was unable to obtain possession of the second floor of the premises and plaintiff refused to close until the premises were vacant, as was its right under a rider to the contract. By letter dated August 7, 1979, plaintiff informed defendant that [****2]  if title did not close by September 6, 1979, it would seek specific performance. Title did not close and the instant action was commenced seeking an abatement of the purchase price by reason of defendant's inability to convey good title to the premises, free and clear of all encumbrances, except those specifically provided for in the contract. A motion by plaintiff for summary judgment was subsequently denied. In the meantime, in February, 1980 the lease to the second floor was terminated and the premises were vacated. Negotiations between the parties as to setting a closing date continued into May, 1980; title did not close and plaintiff again moved for summary judgment.

Special Term, upon whose opinion the Appellate Division affirmed, concluded, inter alia, that when the relevant portions of the rider are read together, it was clear that the intent of the parties was that the ouster of the second floor tenant was a condition precedent to the closing; that plaintiff could adjourn the closing at its sole option and discretion, until such time as the second floor was vacant, without declaring the contract null and void; that the language of the contract was unambiguous on that [****3]  point, and that the contract did not limit plaintiff's right to any specific number of extensions or to any specific time.

 Judnick Realty Corp. v 32 West 32nd St. Corp., 92 Ad2d 811.

Disposition: Order affirmed, with costs, in a memorandum.

CORE TERMS

purchaser, specific performance, seller, second floor, rider, abatement, vacancy, terms of the contract, null and void, closing date, make time, Memorandum, occupancy, declare, vacated, convey, costs

Contracts Law, Breach, Breach of Contract Actions, General Overview, Remedies, Specific Performance