| KPSD Mineola, Inc. v Jahn |
| 2008 NY Slip Op 10132 [57 AD3d 853] |
| December 23, 2008 |
| Appellate Division, Second Department |
| KPSD Mineola, Inc., Respondent, v Myra Jahn,Appellant. |
—[*1] Annette G. Hasapidis, South Salem, N.Y., for respondent.
In an action, inter alia, for specific performance of a contract for the sale of real property, thedefendant appeals from so much of an order of the Supreme Court, Nassau County (Davis, J.), datedJuly 31, 2007, as, upon reargument, adhered to its original determination in an order dated April 6,2007, denying that branch of her motion which was for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
This action seeks, inter alia, specific performance of a contract for the sale of real property in theVillage of Mineola. The contract provides for the closing to take place on or about 30 days after theVillage's adoption of a revised master zoning plan permitting development of the property.
The defendant seller contends that the contract of sale violates the rule against perpetuities (seeEPTL 9-1.1 [b]), or amounts to an unreasonable restraint on alienation because it does not requireclosing to take place until after the adoption of the revised master zoning plan. However, these issuesare raised for the first time on appeal, and are thus not properly before this Court (see Luft v Luft, 52 AD3d 479 [2008];Matter of AIU Ins. Co. v Rodriguez, 43AD3d 1042, 1044 [2007]; Triantafillopoulos v Sala Corp., 39 AD3d 740 [2007]; McCabe v Witteveen, 34 AD3d 652,654 [2006]). Moreover, these issues do not fall within the exception to this rule permitting review ofpure questions of law which could not have been avoided if raised at the proper juncture (see Triantafillopoulos v Sala Corp., 39AD3d 740 [2007]; Gammal v La CasitaMilta, 5 AD3d 630 [2004]).[*2]
The Supreme Court properly denied the defendant's motion forsummary judgment dismissing the complaint on the ground that the plaintiff purchaser failed to complywith the mortgage contingency clause. In support of the motion, the defendant made a prima facieshowing that the plaintiff neither obtained a mortgage commitment within the time period specified bythe contract nor exercised its right to proceed without a commitment by providing a signed agreementto close on a date certain. However, in opposition to the motion, the plaintiff raised triable issues of factas to whether it failed to perform its obligation to provide a written agreement to close without acommitment within a reasonable time period, and, if so, whether the defendant waived compliance withthis contractual provision (see Kistela vAhlers, 22 AD3d 641, 642-643 [2005]; Caledonia Constr. Corp. v Dastgir, 13 AD3d 570, 571 [2004]; Miranda v Jay Constr. Corp., 2 AD3d420 [2003]; Stargiotti v Nigrello, 114 AD2d 498 [1985]). Rivera, J.P., Angiolillo, Engand Belen, JJ., concur.