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Real Property Law
Contract Gave Purchaser Right to Cancel in Its Sole Discretion ELBT Realty, LLC v. Mineola Garden City Co., Ltd. NYLJ 12/2/16, p. 32, col. 6 AppDiv, Second Dept. (memorandum opinion)
In an action by purchaser for return of a down payment, seller appealed from Supreme Court's grant of purchaser's summary judgment motion. The Appellate Division affirmed, holding that the contract's express terms permitted purchaser to cancel the contract in its sole discretion.
Purchaser made a down payment of $120,000 in accordance with the terms of a contract for the purchaser of a commercial building. The payment was held in escrow by the seller's lawyer. The contract provided that, within a specified time period, if purchaser “in its sole discretion, determines that the Project is, for any reason whatsoever, unsatisfactory to Purchaser,” the latter was entitled to terminate the contract and obtain return of the down payment. One month after signing, purchaser exercised the right to terminate and requested return of the down payment. Seller refused, and purchaser brought this action. Supreme Court awarded summary judgment to purchaser, and seller appealed.
In affirming, the Appellate Division rejected seller's argument that the implied covenant of good faith and fair dealing precluded purchaser from terminating the contract. The court emphasized that the plain language of the contract, negotiated by the parties at arm's length and with the benefit of counsel, should have led the seller to recognize that purchaser was entitled to withdraw without any specific justification. The court indicated that it would not read the contract to add new terms that the parties did not specifically include.
Building Owner Entitled to Summary Judgment in Claim Against Architect 143 Bergen Street LLC v. Ruderman NYLJ 11/28/16, p. 25, col. 5 AppDiv, Second Dept. (memorandum opinion)
In building owner's action against its architect for breach of contract and professional malpractice, architect appealed from Supreme Court's grant of summary judgment to building owner. The Appellate Division affirmed, holding that the architect had failed to raise a triable issue of fact on either cause of action.
Building owner hired architect in connection with construction work on the subject building, a New York City landmark. The oral contract between the parties required the architect to obtain required approvals from the Landmarks Preservation Commission (LPC) and the Department of Buildings (DOB). The architect obtained approval for the initial construction from both LPC and DOB, but when the owner requested changes to the plans, the architect submitted amended plans only to DOB, but not to LPC. As the project neared completion, LPC determined that the plans did not comply with the plans it had approved, and directed demolition part of the construction. Building owner then brought this action against the architect, and Supreme Court awarded building owner summary judgment on both its breach of contract claim and its professional malpractice claim.
In affirming, Supreme Court held that the owner established, prima facie, a departure from standards of professional practice and a breach of contract, and concluded that the architect had not raised a triable issue of fact on either issue.
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