| Cerand v Burstein |
| 2010 NY Slip Op 02905 [72 AD3d 1262] |
| April 8, 2010 |
| Appellate Division, Third Department |
| Gerard Alfred Cerand, Respondent, v Alan Burstein, as Executor ofFrederich Remillard, Deceased, Appellant. |
—[*1] Williamson, Clune & Stevens, Ithaca (John H. Hanrahan III of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered April 1, 2009 inTompkins County, which, among other things, denied defendant's motion to dismiss thecomplaint.
In November 2005, plaintiff entered into a contract for the purchase of real property locatedin the Village of Lansing, Tompkins County. Defendant, in his capacity as executor of the estateof Frederich Remillard, signed the contract as seller. The contract contains a condition to besatisfied by the estate, as follows: "[s]eller's providing a zoning letter from the appropriategovernmental agencies stating there are no open code violations cases for said Property shall besufficient provided Property is conveyed free thereof." Despite the estate's failure to providesuch a letter prior to—or at—the closing, plaintiff agreed to close on the propertyupon the estate's commitment at the closing to produce the letter. Approximately one week later,the estate obtained and provided plaintiff with a letter from the Village of Lansing's CodeEnforcement Officer, dated January 5, 2006, in which he states that he was "not aware of anyopen code violations against the [property]," but that the property had two open building permitsdating from 1991 and 2004. The letter further indicates that some construction work had beendone on each project, but that no recent inspections had been requested or performed. Concernedthat these open permits and any unfinished or unauthorized construction work done on the [*2]property, could amount to code violations, plaintiff—relyingon the zoning letter provision—attempted to get the estate to take the necessary measuresto close the permits. Subsequently, the estate hired an engineer, who assessed the extent of worknecessary to close the open permits and drafted a "task list" of outstanding "code issues." Theestate tentatively agreed to pay for the work in the task list provided that plaintiff signed off inwriting that "nothing else will be required"; plaintiff refused.
Following two years of correspondence in which the parties attempted to resolve the dispute,plaintiff commenced this action seeking specific performance or, in the alternative, damages forbreach of contract, alleging that the estate failed to provide the required certifications under thezoning letter provision and failed to remedy code violations that existed at the time of theclosing. Thereafter, defendant moved pursuant to CPLR 3211 (a) (1) to dismiss the complaintbased upon a documentary evidence defense. Supreme Court denied defendant's motion anddefendant now appeals.
Supreme Court correctly denied defendant's motion to dismiss the complaint pursuant toCPLR 3211 (a) (1). " 'To succeed on a motion under CPLR 3211 (a) (1), a defendant must showthat the documentary evidence upon which the motion is predicated resolves all factual issues asa matter of law and definitively disposes of the plaintiff's claim' " (Adamkiewicz vLansing, 288 AD2d 531, 532 [2001], quoting Unadilla Silo Co. v Ernst & Young,234 AD2d 754, 754 [1996]; seeAngelino v Michael Freedus, D.D.S., P.C., 69 AD3d 1203, 1205 [2010];Vanderminden v Vanderminden, 226 AD2d 1037, 1039 [1996]). Here, defendantcontends that the documentary evidence establishes that plaintiff is precluded from bringing abreach of contract action because, under the doctrine of merger, the parties' prior negotiationsand agreements regarding the sale of the property merged into and were extinguished by thedeed. Plaintiff counters that the doctrine of merger does not bar his breach of contract actionbecause the parties' conduct at and subsequent to the closing demonstrated an intent for thezoning letter provision to survive the transfer of the deed.
Generally, "provisions in a contract for the sale of real estate merge into the deed and arethereby extinguished" (Hunt v Kojac, 245 AD2d 858, 858 [1997]; see Goldsmith vKnapp, 223 AD2d 671, 673 [1996]; accord Arnold v Wilkins, 61 AD3d 1236, 1236 [2009]). However,the general rule does not apply where there is a "demonstrated intent that a provision shallsurvive transfer of title" (Hunt v Kojac, 245 AD2d at 858-859; see 1455 WashingtonAve. Assoc. v Rose & Kiernan, 260 AD2d 770, 771 [1999]; Alexy v Salvador, 217AD2d 877, 878 [1995]). While the language of the purchase agreement is silent regardingwhether the parties intended the provision to survive the closing (see Hunt v Kojac, 245AD2d at 859), the record contains evidence that the parties orally agreed at the closing that theprovision would survive. While the parties never executed any document or memorandumevidencing these alleged promises (see CGM Constr. v Miller, 263 AD2d 831, 833[1999]), defendant's subsequent conduct supports plaintiff's claim. The estate's conduct can beconstrued as waiving any provision requiring any amendments to be in writing (see CGMConstr. v Miller, 263 AD2d at 832) and evidenced the parties' intent for the provision tosurvive transfer of title. Consequently, the doctrine of merger did not extinguish plaintiff'sbreach of contract claim (compare Arnold v Wilkins, 61 AD3d at 1237; CGMConstr. v Miller, 263 AD2d at 833).
Defendant next asserts that the purchase contract language and the subsequently providedzoning letter prove that the estate had met its contractual obligation in that the CodeEnforcement Officer was in the best position to report whether there were any actual "open codeviolation cases" being investigated or pursued and his statement that he was "not aware of any[*3]open code violations against [the property]" satisfied therequirement of the zoning letter provision. In contrast, plaintiff asserts that this statement by theCode Enforcement Officer means that the estate was required to provide a letter conclusivelystating that there were no existing code violations and the letter provided did not satisfy thatrequirement.
It is well established that "[t]he construction and interpretation of an unambiguous writtencontract is an issue of law within the province of the court, as is the inquiry of whether thewriting is ambiguous in the first instance" (Estate of Hatch v NYCO Mins., 245 AD2d746, 747 [1997]; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Duringthe interpretation process, "the objective is to determine the parties' intention as derived from thelanguage employed in the contract" (Estate of Hatch v NYCO Mins., 245 AD2d at 747;see Chimart Assoc. v Paul, 66 NY2d 570, 572 [1986]; Teitelbaum Holdings vGold, 48 NY2d 51, 56 [1979]), and the words and phrases employed must be given theirplain meaning (see Angelino v Freedus, 69 AD3d at 1206; Bauersfeld v Board of Educ. ofMorrisville-Eaton Cent. School Dist., 46 AD3d 1003, 1005 [2007], lv denied 10NY3d 704 [2008]; Estate of Hatch v NYCO Mins., 245 AD2d at 747).
Here, the key disputed word is "cases." Applying a legal definition to that word, defendantargues that the plain meaning of "case" is a "controversy" (see Black's Law Dictionary228 [8th ed 2004]) and, thus, it was specifically intended to mean "an action commenced tocorrect a zoning violation that had come to the attention of the code enforcement office and wasbeing pursued by the agency." While this interpretation is not unreasonable, the word "case" isalso susceptible to other reasonable interpretations. Arguably, a more commonly understooddefinition of "case" is "an instance of the occurrence, existence, etc., of something" (Webster'sUnabridged Dictionary 321 [2d ed 1999]). Applying this interpretation, the estate was requiredto provide a letter stating that there were no instances of open code violations and, eventhen, such a letter would only be "sufficient provided [the property were] conveyed free thereof."Therefore, finding that the language of the contract provision is ambiguous and susceptible toalternative interpretations, defendant's documentary evidence does not resolve all factual issuesso as to definitively dispose of plaintiff's claim (see CPLR 3211 [a] [1]).
Mercure, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.