| Israel v Charnews |
| 2007 NY Slip Op 10105 [46 AD3d 753] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Richard Israel, Appellant, v Daniel Charnews et al., asExecutors of the Estate of Daniel Charnews, Deceased, Respondents. |
—[*1] Bracken & Margolin, LLP, Islandia, N.Y. (Linda U. Margolin of counsel), forrespondents.
In an action, inter alia, for specific performance of a contract for the sale of real property, theplaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, SuffolkCounty (Pitts, J.), dated May 8, 2006, as denied his motion, in effect, for summary judgment onthe cause of action for specific performance and granted that branch of the defendants' crossmotion which was for summary judgment dismissing that cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
On August 15, 2001 the plaintiff entered into a contract to purchase 20 acres of a 23-acreparcel of real property (hereinafter the property) which was then owned by the defendants'decedent. The contract was subject to the plaintiff obtaining, within four years, final approvalfrom the Southold Town Planning Board (hereinafter the Planning Board) to subdivide theproperty into 37 lots. Under the contract, the three-acre parcel retained by the defendants'decedent would be one of the 37 lots in the proposed subdivision. The contract required thedefendant's decedent to "cooperate, promote, and execute" all documents necessary forsubdivision approval. Closing was scheduled for "[o]n or about" 30 days after the PlanningBoard signed the final subdivision map.
After the parties entered into the contract, the Town of Southold allegedly imposed amoratorium on subdivision which extended until February 2005. The plaintiff contends that in[*2]February 2005 he submitted an application to the PlanningBoard for a simplified two-lot subdivision of the property in order to obtain subdivision approvalwithin the four-year time period provided by the contract. Under the simplified subdivision plan,the three acres retained by the defendants' decedent would constitute one lot and the remaining20 acres of the property would constitute the other lot. In June 2005 the defendants' decedentnotified the Planning Board that he had not authorized the application for subdivision into twolots. On or about June 13, 2005 the plaintiff commenced this action, inter alia, for specificperformance of the parties' contract, including the obligation of the defendants' decedent toconsent to subdivision.
The Supreme Court properly denied the plaintiff's motion, in effect, for summary judgmenton the cause of action for specific performance and properly granted that branch of thedefendants' cross motion which was for summary judgment dismissing that cause of action. Aparty who seeks specific performance must prove that he has substantially performed hisobligations within the time specified in the contract or within a reasonable time thereafter andthat he is ready, willing, and able to perform those obligations not yet performed (seeLieberman Props. v Braunstein, 134 AD2d 55, 60 [1987]). Generally, where a seller'sobligation to convey property is conditioned on the buyer's obtaining approval for a proposedsubdivision relative to the property conveyed, such a condition is for the benefit of the buyer,who can waive it if he chooses (see Laxrand Constr. Corp. v R.S.C.A. Realty Corp., 135AD2d 685, 686 [1987]; Louis Bonavita & Sons v Quarry, 126 AD2d 707, 708 [1987];Poquott Dev. Corp. v Johnson, 104 AD2d 442, 443 [1984]). However, where, as here, theseller is to retain one or more of the lots to be included in the subdivision, the condition may notbe waived without the assent of the seller (see Praver v Remsen Assoc., 150 AD2d 540,541 [1989]; Lieberman Props. v Braunstein, 134 AD2d at 60; Louis Bonavita & Sonsv Quarry, 126 AD2d at 708).
Here, the plaintiff failed to make a prima facie showing that the defendants' decedent waivedthe condition that the plaintiff obtain approval of a 37-lot subdivision of the property (seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In contrast, the defendants'submissions established, prima facie, that the decedent did not waive this condition, and theplaintiff failed to raise a triable issue of fact in response. Accordingly, summary judgmentdismissing the cause of action for specific performance was warranted based on the plaintiff'sfailure to satisfy the 37-lot subdivision condition of the contract (see Lieberman Props. vBraunstein, 134 AD2d at 60).
The plaintiff's remaining contentions are without merit. Schmidt, J.P., Skelos, Covello andBalkin, JJ., concur.