| Ashley Homes of Long Is., Inc. v County of Suffolk |
| 2009 NY Slip Op 00484 [58 AD3d 772] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Ashley Homes of Long Island, Inc., Respondent, v Countyof Suffolk, Appellant, et al., Defendant. |
—[*1] Winkler, Kurtz, Winkler & Kuhn, LLP, Port Jefferson, N.Y. (Richard D. Winkler ofcounsel), for respondent.
In an action, inter alia, for specific performance and to recover damages for breach ofcontract, the defendant County of Suffolk appeals from so much of an order of the SupremeCourt, Suffolk County (R. Doyle, J.), dated March 27, 2007, as denied that branch of its motionwhich was for summary judgment dismissing the cause of action to recover damages for breachof contract insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, Ashley Homes of Long Island, Inc. (hereinafter Ashley), commenced thisaction, inter alia, for specific performance and to recover damages for breach of a contract topurchase a parcel of property from the defendant County of Suffolk.
The County acquired the property by tax deed on July 1, 1998, after a tax lien sale followingthe failure of the defendant prior owner, Manuel C. Gavales, to pay his property taxes. TheCounty Treasurer's notice to Gavales at a particular address dated August 21, 1997, informinghim that it was acquiring the property by tax sale, was returned undelivered. A second notice thatthe County sent to another address on February 28, 2001, was likewise returned undelivered.
The contract with Ashley contained a limitation of remedies provision which, inter alia,entitled the County to cancel the contract and refund Ashley's down payment if title to theproperty [*2]was "uninsurable." Ashley's title insurance policyprovided that as an "exception from coverage, the company will require proof that. . . Gavales, prior record owner . . . received proper notice of the taxsale."
The County received a title report which noted the exception. In response to the exception,the County sent another notice to Gavales at a newly-obtained address, and Gavales received thenotice. Gavales redeemed the property, and the County cancelled the contract with Ashley underthe limitation of remedies provision since the title to the property was "uninsurable."
At the close of discovery, the County moved, inter alia, for summary judgment dismissingthe cause of action to recover damages for breach of contract insofar as asserted against it andAshley cross-moved for summary judgment on the issue of liability.
The County failed to establish, prima facie, that it was entitled to judgment as a matter oflaw on the ground that the title to the property was uninsurable. In fact, an insurance policy wasissued, albeit subject to exceptions (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; cf. Francis v D & W Saratoga, Inc., 49AD3d 597, 598 [2008]). Thus, it is not necessary to consider the sufficiency of theopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). We note that, at trial, the County may not rely on the defense of impossibility ofperformance since the inability to convey title was not "an unanticipated event that could nothave been foreseen or guarded against in the contract" (Kel Kim Corp. v Central Mkts.,70 NY2d 900, 902 [1987]; cf.Estates At Mountainview, Ltd. v Nakazawa, 38 AD3d 828 [2007]; Came Realty, LLC v Canadian ImperialBank of Commerce, 10 AD3d 348 [2004]). Mastro, J.P., Skelos, Balkin and Belen, JJ.,concur.