| Garnot v LaDue |
| 2007 NY Slip Op 08811 [45 AD3d 1080] |
| November 15, 2007 |
| Appellate Division, Third Department |
| Peter Garnot et al., Respondents, v Leland LaDue et al.,Appellants. |
—[*1] O'Connell & Aronowitz, Plattsburgh (Heidi Dennis of counsel), for respondents.
Mercure, J. Appeals (1) from an order of the Supreme Court (Dawson, J.), entered October 3,2006 in Clinton County, which, among other things, granted plaintiffs' motion for summaryjudgment awarding specific performance, (2) from an order of said court, entered December 1,2006 in Clinton County, which, among other things, denied defendants' motion forreconsideration, and (3) from an order of said court, entered January 2, 2007 in Clinton County,which, among other things, set the amount of abatement to be applied to the original purchaseprice.
In this action, plaintiffs seek specific performance of a purchase offer agreement regardingreal property owned by defendants. Pursuant to the purchase offer, which the parties signed inMay 2001, plaintiffs were to make an initial $1,000 down payment on the property and then payan additional $169,000 at closing, which was to occur on or before July 31, 2001. The offer wascontingent upon plaintiffs obtaining a firm mortgage commitment within 60 days, performanceof a home inspection, and the sale of plaintiffs' home.
On July 24, 2001, defendants informed plaintiffs that they were no longer willing to sell theproperty because a fire had destroyed a storage garage and delivery was therefore "impossible."Defendants also noted that they had not received confirmation that plaintiffs had obtainedfinancing, and that a home inspection had not been performed. Plaintiffs responded that they hadobtained financing, opted not to conduct a home inspection and were willing to purchase theproperty with an abatement of the purchase price. When defendants refused to [*2]proceed with the sale, plaintiffs commenced this action.
Supreme Court ultimately granted plaintiffs' motion for summary judgment awarding specificperformance with an abatement of the purchase price and denied defendants' cross motion forsummary judgment. The court further denied defendants' motion to reargue and/or renew theircross motion for summary judgment and granted plaintiffs' cross motion to quash a subpoenaissued by defendants. Thereafter, upon a stipulation by the parties, the court set the amount ofabatement at $9,000, resulting in a net purchase price of $161,000, and directed that a closingoccur within 75 days. Defendants appeal[FN*] and we now affirm.
Initially, defendants assert that plaintiffs failed to demonstrate prima facie that they hadobtained financing for the purchase of the property and were therefore ready, willing and able topurchase the property. Specifically, defendants assert that because plaintiffs did not provide themwith a written confirmation of mortgage financing within 60 days of signing the purchase offeragreement or close on the property prior to July 31, 2001, the offer did not mature into a bindingcontract and was properly withdrawn. We disagree.
Generally, when there is an objective manifestation of intent to enter into a contract, apurchase offer agreement will "be subject to specific performance [if] it identifies the parties,describes the subject property, recites all essential terms of a complete agreement, and is signedby the party to be charged" (O'Brien v West, 199 AD2d 369, 370 [1993]; seeGeneral Obligations Law § 5-703 [2]; 160 Chambers St. Realty Corp. v Register ofCity of N.Y., 226 AD2d 606, 606-607 [1996]; see generally 219 Broadway Corp. vAlexander's, Inc., 46 NY2d 506, 510-512 [1979]). Moreover, the fact "[t]hat the partiesanticipated the execution of a more formal contract would not impair the effectiveness of thewriting if it . . . embodies all of the essential terms of the agreement" (160Chambers St. Realty Corp. v Register of City of N.Y., 226 AD2d at 607; see Atai v Dogwood Realty of N.Y.,Inc., 24 AD3d 695, 699 [2005]).
Here, evidence of the parties' intent to treat the purchase offer agreement as a contract isfound in the deposition testimony of defendant Marjorie LaDue describing how the partiesscheduled a date to sign "the purchase agreement" (emphasis added) in each other'spresence. Notably, plaintiffs paid $1,000 as consideration for the agreement, which provided onits face that "[t]his contract [is] contingent on [the] sale of [plaintiffs'] home" (emphasisadded), and plaintiffs did sell their residence in anticipation of taking possession of the propertyat issue here. Finally, there is no dispute that the purchase agreement adequately identifies theparties and property, or that it contains all essential terms of a complete agreement,notwithstanding the parties' intention to later sign a more detailed contract. Thus, Supreme Courtproperly determined that the purchase offer constituted a valid contract of sale as opposed to anoffer subject to withdrawal by defendants (see Wacks v King, 260 AD2d 985, 987[1999]; 160 Chambers St. Realty Corp. v Register of City of N.Y., 226 AD2d at 607;Rieter v Tavella, 157 AD2d 894, 894-895 [1990]; cf. Kophen v Cornell, 260AD2d 914, 915 [1999], lv denied 93 [*3]NY2d 811[1999]).
Further, we agree with Supreme Court that plaintiffs demonstrated that they were ready,willing and able to perform on the closing date and, therefore, were entitled to specificperformance with an abatement of the purchase price (see Lucenti v Cayuga Apts., 48NY2d 530, 541-542 [1979]). Inasmuch as the right to obtain an inspection was inserted into theagreement for plaintiffs' benefit, they were entitled to waive that condition (see e.g. Tucek vHoffman, 161 AD2d 588, 589 [1990]; Poteralski v Colombe, 84 AD2d 887, 887[1981]). With respect to defendants' claim that plaintiffs did not obtain the necessary financing,LaDue testified at her examination before trial that plaintiffs informed her on July 20,2001—prior to defendants' attempt to rescind the offer—that they had obtained thenecessary financing and gave her the phone number of a mortgage broker who could verify thisinformation. LaDue further indicated that her attorney did call the broker. In addition, plaintiffsaver that they had obtained financing and submitted a letter from their mortgage brokerindicating that their "loan approval" remained valid until September 3, 2001. While defendantsassert that they were nevertheless excused from performing their obligations under the agreementbecause plaintiffs failed to provide them with written proof of a mortgage commitment within 60days of signing the agreement, the purchase offer neither required written confirmation norspecified that time was of the essence. In short, because plaintiffs obtained financing within areasonable time of the date specified by the purchase offer and were ready, willing and able topurchase the property on the specified closing date, Supreme Court properly granted their requestfor specific performance (see Tucek v Hoffman, 161 AD2d at 589-590; see also ADC Orange, Inc. v Coyote Acres,Inc., 7 NY3d 484, 490 [2006]; Mercer v Phillips, 252 AD2d 900, 901 [1998];cf. Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997, 998 [1983]).
Defendants' remaining arguments require little further discussion. Inasmuch as defendantsfailed to establish that the disclosure they were seeking was not duplicative, we cannot say thatSupreme Court abused its broad discretion over the discovery process by denying defendants'motion to compel interrogatory answers (see ACWOO Intl. Steel Corp. v Frenkel & Co.,165 AD2d 753, 754 [1990]). Finally, given that defendants issued a subpoena duces tecummerely to ascertain the possible existence of evidence after Supreme Court had resolved theparties' summary judgment motions, the court did not err in granting plaintiffs' motion to quashthe subpoena (see e.g. Matter of Terry D., 81 NY2d 1042, 1044 [1993]; Matter ofPlater v Cortland Mem. Hosp., 256 AD2d 678, 678-679 [1998]).
The parties' remaining arguments have been considered and found to be lacking in merit.
Cardona, P.J., Crew III, Carpinello and Kane, JJ., concur. Ordered that the orders areaffirmed, with costs.
Footnote *: Defendants make no argumentsin their brief regarding Supreme Court's order setting the amount of the abatement and, thus, anyissues in that regard are deemed abandoned (see Peak v Northway Travel Trailers, Inc., 27 AD3d 927, 928[2006]).