| White Plains Equities Assoc., Inc. v Vista Devs. Corp. |
| 2011 NY Slip Op 02046 [82 AD3d 569] |
| March 22, 2011 |
| Appellate Division, First Department |
| White Plains Equities Associates, Inc., Respondent, v VistaDevelopers Corp., Appellant. |
—[*1] Goidel & Siegel, LLP, New York (Jonathan M. Goidel of counsel), for respondent.
Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered January 11,2010, which denied defendant buyer's motion for summary judgment seeking a declaration, on itsfirst counterclaim, that it duly terminated the parties' agreement pursuant to the terms thereof andis entitled to the return of its down payment, and granted plaintiff seller's cross motion forsummary judgment on its first cause of action to the extent of declaring that plaintiff is entitled toretain defendant's $607,500 down payment as liquidated damages for breach, unanimouslymodified, on the law, to deny the cross motion, and otherwise affirmed, without costs.
The parties' written agreement for the purchase and sale of certain real property is ambiguousin pertinent part and, therefore, cannot be construed as a matter of law. Accordingly, absent amore fully developed record containing parol evidence of the parties' intentions at the time ofcontracting, neither party is entitled to summary judgment declaring whether defendant buyervalidly exercised a right of termination conferred on it by the agreement. The issues to beresolved in further proceedings upon remand include, at a minimum, the following: (1) whetherthe seller's service of the notice of the status of negotiations with tenants for the surrender of theirleases or of possession of their premises under section 4.3 (B) was a condition precedent to theexpiration of the buyer's time in which to exercise its right under section 4.3 (A) to cancel theagreement "[f]or any reason or for no reason at all . . . within five (5) business daysafter the expiration of the [60-day] Due Diligence Period" following execution of the agreement;and (2) whether the buyer's right to cancel the agreement under section 4.3 (B) (d) based on therefusal of more than five tenants to surrender their leases or vacate their premises by a certaintime was dependent on the seller's prior exercise of the right under section 4.3 (B), "at [s]eller'ssole option, . . . to terminate this Agreement during [the 60-day] Seller'sNegotiation Period" following execution of the agreement. Given the apparent contradictions andredundancies [*2]within the relevant portions of the agreement,and the indeterminacy of the relationship between various provisions at issue, a more fullydeveloped evidentiary record must be assembled before the agreement can be authoritativelyconstrued, either on a future summary judgment motion or at trial. Concur—Tom, J.P.,Friedman, McGuire, Acosta and RomÁn, JJ.