| Matter of Mattar v Heckl |
| 2010 NY Slip Op 06942 [77 AD3d 1390] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Lawrence J. Mattar, for an Order Authorizing the Sale ofCertain Real Property Belonging to Aida C., an Incapacitated Person, Respondent, v Rosanna E.Heckl et al., Appellants. |
—[*1] Mattar, D'Agostino & Gottlieb, LLP, Buffalo (Jonathan Schapp of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Erie County (Penny M. Wolfgang, J.), entered April13, 2009. The order, inter alia, granted the petition and approved the sale of certain real property.
It is hereby ordered that said appeal is unanimously dismissed with costs.
Memorandum: Respondents, the children of Aida C., an incapacitated person (hereafter, IP) (Matter of Aida C., 66 AD3d 1344[2009]), appeal from an order that, inter alia, granted the petition of the guardian of the IP's propertyseeking to sell certain real property pursuant to Mental Hygiene Law § 81.21 (b). Respondentscontend that Supreme Court erred in failing to set forth its reasons for granting the petition as requiredby section 81.21 (e), and they seek to have the contract of sale rescinded. The sale of the property inquestion to a third party closed more than one year before respondents perfected their appeal. "'[U]nder the well-established doctrine of merger, provisions in a contract for the sale of real estatemerge into the deed and are thereby extinguished absent the parties' demonstrated intent that aprovision shall survive transfer of title' " (Arnold v Wilkins, 61 AD3d 1236, 1236 [2009]). Thus, the contractprovisions have merged into the deed, and the contract may not be rescinded. Where, as here, "therights of the parties cannot be affected by the determination of [the] appeal," the appeal must bedismissed as moot (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).Present—Scudder, P.J., Centra, Peradotto, Sconiers and Pine, JJ.