| Bayly v Broomfield |
| 2012 NY Slip Op 01532 [93 AD3d 909] |
| March 1, 2012 |
| Appellate Division, Third Department |
| Lynn Bayly et al., Plaintiffs, and Patricia L. Young, asAdministrator of the Estate of George E. Young, Deceased, Respondent, v Lillian M.Broomfield, Appellant. |
—[*1] Coughlin & Gerhart, L.L.P., Binghamton (Anna Dmitriev of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Lebous, J.), entered August 27,2010 in Broome County, which granted plaintiff Patricia L. Young's motion for, among otherthings, summary judgment requiring defendant's specific performance of a contract for the sale ofreal property.
Decedent and defendant were the owners of a piece of improved real property located in theTown of Kirkwood, Broome County. After decedent's death, plaintiff Patricia L. Young,administrator of decedent's estate, and defendant accepted an offer by plaintiffs Lynn Bayly andAnn Bayly to purchase the property. Two months later, in December 2009, defendant indicatedthat she would only agree to the sale if a clause was added to the contract prohibiting any drillingor other environmental damage to the property and requiring that it remain "forever green." Inresponse, plaintiffs commenced this action for, among other things, specific performance of thecontract. Defendant filed a verified answer to the complaint, with a counterclaim against Youngwith respect to personal property she alleged belonged to decedent's estate. Subsequently, Young[*2]moved for summary judgment on the claim for specificperformance and asked that defendant's counterclaim regarding decedent's personal property bemoved to Surrogate's Court. Supreme Court granted the motion in its entirety and defendant nowappeals.[FN1]
Supreme Court properly determined that a valid contract for the sale of the property existedbetween the parties and that plaintiffs were entitled to specific performance of the contract. Itfound that the contract contained an ample description of the property, set forth the contract priceas well as the method of payment, established a closing date and, by its terms, constituted therecord of the complete agreement entered into by the parties (see Ouimet v Fitzsimmons, 68 AD3d 1507, 1508 [2009], lvdenied 14 NY3d 714 [2010]; Garnotv LaDue, 45 AD3d 1080, 1082 [2007]; Bellevue Bldrs. Supply v Belmonte, 271AD2d 849, 850 [2000]; O'Brien v West, 199 AD2d 369, 370 [1993]). Defendant arguesthat her refusal to initial a clause in the contract regarding the property's gas and oil rightsestablished that the parties had not agreed to all essential terms and, as a result, had not enteredinto an enforceable agreement. However, this clause was simply an affirmation by the sellers thatgas and oil rights to the property had not been transferred or leased to another party, and was aprovision in the contract clearly designed to benefit the buyers and not the sellers. Moreover,nowhere in the contract is there any reference to the property remaining "forever green," or anyindication that such a condition was an essential term of the parties' agreement. As a result,defendant's failure to initial this provision did not create an ambiguity as to the contract'sessential terms and did not serve to invalidate it.
Defendant also claims that Young's motion for summary judgment should have been deniedbecause plaintiffs failed to establish that the Baylys were ready, willing and able to perform theirobligations under the contract. In support of the motion, the Baylys submitted an affidavit thatincluded information regarding their ability to perform their obligations under the contract.Defendant argues that this was a reply affidavit containing new facts not previously submitted inconnection with Young's motion for summary judgment and should not have been considered bySupreme Court. We disagree. However, regardless of how the affidavit is characterized, the factremains that defendant had ample opportunity to respond to it during oral argument on themotion before Supreme Court. As a result, the court did not abuse its discretion by considering itwhen deciding this motion (seegenerally Ennis-Short v Ostapeck, 68 AD3d 1399, 1401 [2009]).[FN2]
More importantly, in seeking specific performance, Young established that the Baylys"performed their contractual obligations and were ready, willing and able to fulfill theirremaining obligations" under the contract (Alba v Kaufmann, 27 AD3d 816, 818 [2006]; accord Ouimet vFitzsimmons, 68 AD3d at 1508; seeGjonaj v Sines, 69 AD3d 1188, 1189 [2010]; Dube-Forman v D'Agostino, 61 AD3d 1255, 1256 [2009]; #1 Funding Ctr., Inc. v H & G OperatingCorp., 48 AD3d 908, 910 [2008]). We note that the complaint was verified by theBaylys shortly after the contract's closing date, and in it they confirmed that they were "ready,[*3]willing and able to comply with the terms, provision[s] andconditions of the Agreement." Also, the affidavit contained documentation establishing that theBaylys possessed liquid assets at the time of the closing that were valued in excess of the contractsale price. Consequently, we conclude that Supreme Court's finding that the Baylys were ready,willing and able to perform under the contract is supported by the record and the motion forsummary judgment granting specific performance was properly granted.
Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: By her brief, defendant limitsher appeal to that part of the order granting Young's motion for summary judgment.
Footnote 2: During oral argument, defendantdid not object to Baylys' affidavit being considered in connection with this motion.