| Natale v Ernst |
| 2009 NY Slip Op 05056 [63 AD3d 1406] |
| June 18, 2009 |
| Appellate Division, Third Department |
| James M. Natale, Individually and as Assignor of Linda Pleat, etal., Respondents, v Matthew J. Ernst, Appellant. |
—[*1] Law Office of William V. Canale, Glens Falls (Gregory V. Canale of counsel), forrespondents.
McCarthy, J. Appeal from that part of an order of the Supreme Court (Nolan, Jr., J.), enteredApril 24, 2008 in Saratoga County, which partially granted plaintiffs' motion for partial summaryjudgment.
In this action alleging, among other claims, breach of contract, plaintiffs seek specificperformance of an agreement to reconvey a small parcel of property located on the east side ofRoutes 4 and 32 in the Town of Northumberland, Saratoga County, back to plaintiff James M.Natale (hereinafter plaintiff).[FN*]Upon motions for partial summary judgment by plaintiffs and defendants, Supreme Court,among other things, found that defendant breached this agreement, granted plaintiffs summaryjudgment on the breach of contract cause of action and ordered specific performance. Defendantappeals. We now affirm.
The record reveals that plaintiff and defendant entered into a purchase and sale agreement inApril 2002 pursuant to which plaintiff agreed to sell defendant a large parcel of [*2]property on the west side of Routes 4 and 32. Shortly prior to theclosing, it was discovered that the deed for this conveyance included a small parcel across theroad. This presented a closing problem because the Town's zoning laws then in effect did notpermit the subdivision of this property in the absence of an area variance. Rather than walk awayfrom the agreement, the parties added an addendum to it.
Pursuant to the addendum, plaintiff would convey title to the entire parcel (for no additionalconsideration) and defendant would reconvey the portion of the parcel that is across the roadback (for no consideration) "[a]t such time as [defendant] obtains subdivision approval for thepremises." The addendum further provided that "[i]f for any reason [defendant] is unable toobtain subdivision approval by December 1, 2002, [he] shall purchase the [s]mall [p]arcel from[plaintiff] for fair market value." A procedure was also outlined in the event that the partiescould not agree on a price. Specifically, it was agreed that fair market value would be determinedby two appraisers, one selected by each party.
Shortly after the closing, defendant's lawyer, on defendant's behalf, attempted to getsubdivision approval, to no avail. The December 1, 2002 deadline passed without either partyenforcing the provision requiring that defendant pay plaintiff fair market value for the smallparcel. Instead, plaintiff, through his attorney and others, continued efforts to pursue subdivisionapproval on behalf of defendant, and defendant did nothing other than make oral offers topurchase the small parcel from plaintiff, which were rejected. In particular, defendant never hadthe property appraised. In February 2006, changes in the zoning laws removed the barrier for thissmall parcel to be subdivided. According to plaintiffs, defendant nevertheless refused to take thenecessary steps to have the property subdivided, thus resulting in this action.
In moving for summary judgment and seeking specific performance of the addendum,namely, an order directing defendant to apply for subdivision approval in light of the recentzoning amendments, plaintiffs argued that defendant waived the December 1, 2002 deadline forsubdivision approval. In opposition, defendant argued that he never "affirmatively" or"intentionally" waived any deadline. It is axiomatic that "[c]ontractual rights may be waived ifthey are knowingly, voluntarily and intentionally abandoned" (Fundamental Portfolio Advisors, Inc. vTocqueville Asset Mgt., L.P., 7 NY3d 96, 104 [2006]; see General MotorsAcceptance Corp. v Clifton-Fine Cent. School Dist., 85 NY2d 232, 236 [1995]). Moreover,waiver of a contractual right "may be established by affirmative conduct or by failure to act so asto evince an intent not to claim a purported advantage . . . and must be based on aclear manifestation of intent to relinquish a contractual protection" (Fundamental PortfolioAdvisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d at 104 [internal quotation marks andcitations omitted]; see Richard A.Hutchens CC, L.L.C. v State of New York, 59 AD3d 766, 770 [2009]). While theexistence of an intent to waive a contractual right generally presents a question of fact (seee.g. Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d at 104),we agree with Supreme Court's finding that the record establishes as a matter of law thatdefendant waived enforcement of the deadline and never thereafter withdrew that waiver (seeNassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]).
The record reveals that defendant's lawyer, expressly on defendant's behalf, gave plaintiff'sattorney written authorization to continue efforts to obtain subdivision approval on August 3,2004, which was long after the deadline passed. Defendant acknowledged that this attorney washis "lawyer throughout this whole thing." Moreover, he never specifically denied [*3]that he authorized his attorney to sign this document but ratheralleged, through his current attorney's affidavit, that he "does not recall" doing so. Under thesecircumstances, the written authorization signed by defendant's attorney (see Lent v Eidt,263 App Div 73 [1941], affd 288 NY 603 [1942]) constitutes "evidence from which aclear manifestation of intent by defendant to relinquish the protection of the contractual[deadline] could be reasonably inferred" (Gilbert Frank Corp. v Federal Ins. Co., 70NY2d 966, 968 [1988]). In addition to this document, additional letters in the record, particularlytwo authored by defendant's lawyer and copied to him, constitute evidence of an intent to waivethe deadline, as well as evidence of defendant's awareness of that waiver and acquiescence in it.
First, on December 23, 2004, defendant's lawyer, on notice to him, advised plaintiff's counselthat "[b]ased upon your notification that the property was going to be re-zoned such that the[small] parcel . . . would be conforming, we ceased our efforts to obtain anotherappraisal. At such time as the property is re-zoned, [defendant] will honor the existingcontract with [plaintiff]" (emphasis added). Moreover, in an April 7, 2005 letter to plaintiff'scounsel, again on notice to defendant, defendant's counsel expressed gladness that rezoningefforts were "moving along," stated his belief that rezoning alone "will not be sufficient for[defendant] to convey the title to the small parcel" and advised that defendant was entitled tocertain reimbursement for taxes and other expenses "[a]t the time of the transfer" back toplaintiff's then assignee.
Defendant never specifically denied receipt of these letters (cf. Bryan v State-Wide Ins.Co., 144 AD2d 325 [1988]; Matter of Gordon v Town of Esopus, 107 AD2d 114[1985], lv denied 65 NY2d 609 [1985]). Rather, he averred that he did not "recall"receiving any such letters, readily acknowledged that his attorney "definitely could have" sentthem, and further claimed that, even if he had received them, he could have "ignored" thembecause he believed that the deadline had passed. When questioned about the December 23,2004 letter in particular, defendant acknowledged that he never raised an objection to its contentsbut, rather, "probably circular filed it" (i.e., threw it out). Not only did defendant fail to object tothe continued attempts to obtain subdivision approval so that the small parcel could bereconveyed, he never had the small parcel appraised. This inaction further evinces an intent onhis part to resolve the matter through reconveyance, as opposed to sale, and to thus waive thedeadline.
Given these facts, and regardless of any alleged subjective and unstated intent on defendant'spart, the record confirms Supreme Court's finding that defendant waived the deadline andthereafter failed to withdraw that waiver. When he thereafter refused to cooperate in efforts toapply for subdivision approval under the new zoning laws, he breached the agreement.Accordingly, Supreme Court's order is affirmed.
Peters, J.P., Spain, Rose and Kane, JJ., concur. Ordered that the order is affirmed, with costs.
Footnote *: Plaintiff Linda Pleat wasultimately assigned the rights under this agreement.