| Golfo v Kycia Assoc., Inc. |
| 2007 NY Slip Op 08411 [45 AD3d 531] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Anthony Golfo et al., Appellants, v Kycia Associates, Inc.,et al., Respondents. |
—[*1] Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Theodore D. Sklar of counsel), forrespondents.
In an action, inter alia, for specific performance of contracts for the sale of real property, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Suffolk County (Pines, J.), dated June 29, 2006, as denied their motion for summary judgment onthe first cause of action and granted those branches of the defendants' cross motion which werefor summary judgment dismissing the complaint and for cancellation of a notice of pendencyrecorded against the subject property.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties entered into four contracts for the purchase and sale of four contiguous parcels ofcertain real property. The contracts provided that if the closing did not occur by September 30,2001, for any reason except the defendants' default, the defendants had a right to cancel thecontracts. The plaintiffs allegedly discovered a defect in the property and attempted to renegotiatethe contracts. As a result, the closing did not occur by the designated date. However, thedefendants did not attempt to exercise the cancellation clause until March 2002. The plaintiffsrejected the cancellation, filed a notice of pendency, and commenced the instant action, inter alia,for specific performance.
Upon the completion of the depositions of the parties, as well as their counsel in the [*2]underlying real estate transaction, the parties moved for summaryjudgment. As relevant here, the Supreme Court granted those branches of the defendants' crossmotion which were for summary judgment dismissing the complaint and for cancellation of thenotice of pendency filed with respect to the subject property, on the ground that the defendantshad not waived their right to cancel the contracts when the closing did not occur by the datespecified in the contracts.
A valid waiver "requires no more than the voluntary and intentional abandonment of aknown right which, but for the waiver would have been enforceable" (Nassau Trust Co. vMontrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]; see Gresser v Princi,128 AD2d 752, 753 [1987]). It may arise by either an express agreement or by such conduct or afailure to act as to evince an intent not to claim the purported advantage (see Hadden vConsolidated Edison Co. of N.Y., 45 NY2d 466, 469 [1978]; Gresser v Princi, 128AD2d at 753). A waiver "is not created by negligence, oversight, or thoughtlessness, and cannotbe inferred from mere silence" (Peck v Peck, 232 AD2d 540, 540 [1996]). Rather, theremust be proof that there was a voluntary and intentional relinquishment of a known andotherwise enforceable right (see Peck v Peck, 232 AD2d 540 [1996]).
Here, the defendants made a prima facie showing of entitlement to judgment as a matter oflaw (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]; Ilardi v Inte-Fac Corp., 290 AD2d 490 [2002]). Thedeposition testimony established that the defendants did not waive their right to cancel thecontracts although the September 30, 2001 deadline had passed. We additionally note that theplaintiffs' real estate counsel conceded as much in his deposition. In opposition, the plaintiffsfailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324).Accordingly, the Supreme Court properly granted those branches of the defendants' cross motionwhich were for summary judgment dismissing the complaint and for cancellation of the notice ofpendency filed with respect to the subject property.
The plaintiffs' remaining contentions are without merit. Miller, J.P., Ritter, Covello andMcCarthy, JJ., concur.