| Vibar Constr., Inc. v Konetchy |
| 2010 NY Slip Op 08094 [78 AD3d 819] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Vibar Construction, Inc., Appellant, v Robert Konetchy etal., Respondents. |
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In an action to recover damages for breach of a contract for the sale of real property and forthe return of a down payment given pursuant to that contract, the plaintiff appeals from an orderof the Supreme Court, Westchester County (Smith, J.), dated October 2, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint and on their counterclaimawarding them the down payment as liquidated damages under the contract, and denied its crossmotion for summary judgment on the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the defendants' motion for summary judgmentdismissing the complaint and on their counterclaim awarding them the down payment asliquidated damages under the contract. The defendants established, prima facie, that the plaintiff'scancellation of the contract for the sale of the subject real property pursuant to a particularcontractual provision was invalid (seeLot 57 Acquisition Corp. v Yat Yar Equities Corp., 63 AD3d 1109, 1110 [2009]).Specifically, the defendants established that the plaintiff failed to make diligent, good faithefforts to apply for, and to pay the associated fee and escrow deposit for, a wetlands activitypermit for a three-bedroom, single-family residence, driveway, and Subsurface SewageTreatment System for the subject property, with the Planning Board of the Town of Lewisboro(hereinafter the Planning Board). In opposition, the plaintiff failed to raise a triable issue of fact.The plaintiff conceded that it did not attempt to file the subject application with the PlanningBoard or to pay the associated fee or escrow deposit. Despite the plaintiff's claims that itdiligently sought to file the application with the town wetlands inspector, this provedunsuccessful and ran counter to the procedure mandated by both the contract of sale and theTown Code (see Code of Town of Lewisboro § 217-5 [D] [1] [e]; § 217-7[A] [2]).
Moreover, the Supreme Court properly rejected the plaintiff's claim that the contract of salewas invalid because there was no meeting of the minds regarding the material [*2]terms of the transaction, specifically, the date by which the plaintiffwas to obtain a wetlands activity permit. Contrary to the plaintiff's contentions, by countersigningthe contract without altering or otherwise objecting to the handwritten changes unilaterally madeby the plaintiff's attorney, including the date change, accepting the down payment, and returninga copy of the signed contract to the plaintiff, the defendants clearly acquiesced to the plaintiff'schanges to the contract (see Tarlo v Robinson, 118 AD2d 561, 565 [1986]).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Florio, Angiolillo andDickerson, JJ., concur.