| Gjonaj v Sines |
| 2010 NY Slip Op 00438 [69 AD3d 1188] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Vincens Gjonaj, Respondent, v Beverly Sines,Appellant. |
—[*1] David A. DeClue, Bainbridge, for respondent.
Garry, J. Appeal from an amended order of the Supreme Court (Dowd, J.), entered April 10,2009 in Chenango County, which, among other things, granted plaintiff's motion for summaryjudgment.
In November 2007, the parties entered into a written contract for the purchase and sale ofdefendant's real property located in the Town of Bainbridge, Chenango County. The agreementwas set forth in a two-page standardized form supplied by the realtor. The contract set a closingdate in February 2008. Upon defendant's failure to follow up in any manner or respond tosubsequent correspondence, plaintiff's counsel advised defendant in March 2008 that, if he wasnot promptly contacted, he would assume she was refusing to sell and would commence anaction seeking specific performance of the contract. Following commencement of the action,defendant asserted, as affirmative defenses, failure to state a cause of action, the statute offrauds, and a claim that the contract was void because it was not drafted by an attorney and didnot contain an attorney approval clause. In November 2008, plaintiff moved for summaryjudgment. Defendant claimed in opposition, among other things, that the value of the propertywas misrepresented to her by the realtor and it would be inequitable to enforce the contract termsagainst her. This claim was supported by the affidavit of a real estate broker who opined that thevalue of the property was somewhat more than double the stated contract price. Supreme Courtgranted plaintiff's motion, directed specific performance of the contract within 30 days, andawarded motion costs. Defendant appeals.
We affirm. As Supreme Court held, the contract states all the essential terms and complieswith the requirements of the statute of frauds (see General Obligations Law §5-703; Garnot v LaDue, 45 AD3d1080, 1082 [2007]). Real estate brokers are permitted to provide limited assistance to theirclients with contract forms, and there is no evidence in this record that the broker exceeded thiscustomary role and engaged in the unauthorized practice of law (see Matter of Duncan & HillRealty v Department of State of State of N.Y., 62 AD2d 690, 696-697 [1978], lvsdenied 45 NY2d 709, 821 [1978]). Appropriate warning of the form contract's legal effectwas provided by language in capital letters appearing immediately below the realtor's address atthe top of the first page, indicating that the form is a "CONTRACT TO PURCHASE," that it is"A CONTRACT FOR THE PURCHASE AND SALE OF REAL ESTATE . . .[THAT] BECOMES A BINDING CONTRACT UPON ACCEPTANCE," and finally, that "WERECOMMEND CONSULTING AN ATTORNEY BEFORE SIGNING" (see Matter ofDuncan & Hill Realty v Department of State of State of N.Y., 62 AD2d at 698-699;compare Matter of Mulford v Shaffer, 124 AD2d 876, 878 [1986]).[FN1]
Defendant belatedly raised the claim of fraud, and it was therefore within Supreme Court'sdiscretion to decline to address this issue (see Matter of E.W. Tompkins Co., Inc. v State Univ. of N.Y., 61 AD3d1248, 1252 [2009], lv denied 13 NY3d 701 [2009]). In any event, to succeed uponthis claim, defendant was required to demonstrate a material misrepresentation of fact uponwhich she relied to her detriment (seeDube-Forman v D'Agostino, 61 AD3d 1255, 1257 [2009]; Pidwell v Duvall, 28 AD3d 829,831-832 [2006]). Defendant did not assert any such misrepresentation by plaintiff but, rather, bythe broker, who was not a party to the action. No evidence in the record supports a claim that thebroker was an agent of plaintiff, rather than defendant. Thus, any remedy or claim that defendantmay assert against the broker does not bar plaintiff's right to enforce the contract.
As defendant argues, plaintiff's right to obtain specific performance requires a showing thathe is ready, able, and willing to perform his own obligations under the contract. We haverecognized, however, that the requirement of tender of performance may be waived or obviatedby acts of the other party amounting to an anticipatory breach (see Lower v Village of Watkins Glen,17 AD3d 829, 831 [2005]; Madison Invs. v Cohoes Assoc., 176 AD2d 1021, 1021[1991], lv dismissed 79 NY2d 1040 [1992]). In light of defendant's utter failure tocomply with any portion of her contractual obligations or to communicate in any manner withplaintiff or respond to his correspondence prior to commencement of the action, we find thattender was waived in this instance.[FN2]
Defendant further challenges Supreme Court's requirement that she vacate the premiseswithin 30 days. Determining what constitutes a reasonable time for performance requires factualanalysis of the specific circumstances of the parties' relations, specifically includingconsideration of any potential prejudice or hardship accruing to either party (see Ben Zev vMerman, 73 NY2d 781, 783 [1988]). Considering that the contract was executed inNovember 2007, plaintiff clearly demanded performance by his correspondence in March 2008,and defendant failed to communicate with plaintiff for a prolonged period of time, it was notunreasonable for the court to demand prompt compliance at the time of its amended order inApril 2009.
Finally, the award of motion costs is appropriate in accord with CPLR 8202, in the amountof $100. Contrary to defendant's contention, there is no indication that Supreme Court intendedto impose costs for a frivolous proceeding pursuant to 22 NYCRR 130-1.1.
Cardona, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the amended order isaffirmed, with costs.
Footnote 1: The form included, as apotential contingency, an attorney's approval clause, in accord with the routine practice in thisregion (see Moran v Erk, 11 NY3d452, 455 [2008]), but the parties did not avail themselves of this option.
Footnote 2: It further appears from thecontract terms that plaintiff intends to pay for the property without the need for any financing.His counsel affirmed at oral argument that plaintiff stands fully ready, willing and able to meetthe contractual terms.