| 131 Heartland Blvd. Corp. v C.J. Jon Corp. |
| 2011 NY Slip Op 02644 [82 AD3d 1188] |
| March 29, 2011 |
| Appellate Division, Second Department |
| 131 Heartland Blvd. Corp. et al.,Respondents-Appellants, v C.J. Jon Corp.,Appellant-Respondent. |
—[*1] Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (E. Christopher Murray and Matthew F.Didora of counsel), for respondents-appellants.
In an action, inter alia, to recover damages for breach of contract and for a judgmentdeclaring that the defendant is required to assume the obligations of the former tenant under theformer tenant's lease with the plaintiff, the defendant appeals, as limited by its brief, (1) from somuch of an order of the Supreme Court, Suffolk County (Emerson, J.), dated October 7, 2009, asgranted those branches of the plaintiffs' motion which were for summary judgment on the firstand second causes of action of the complaint and denied those branches of its cross motion whichwere for summary judgment dismissing the first and second causes of action and on itscounterclaim, and (2) from so much of a judgment of the same court entered November 5, 2009,as, upon the order, is in favor of the plaintiffs and against it in the principal sum of $425,000; andthe plaintiffs cross-appeal from (1) so much of the same order as denied that branch of theirmotion which was for summary judgment on the third cause of action and granted that branch ofthe defendant's motion which was for summary judgment dismissing the third cause of action,and (2) so much of the same judgment as, upon the order, dismissed the third cause of action.
Ordered that the appeal and the cross appeal from the order are dismissed; and it is further,
Ordered that the judgment is modified, on the law, by adding a provision thereto declaringthat the defendant is not required to assume the obligations of the former tenant under the formertenant's lease with the plaintiff; as so modified, the judgment is affirmed, without costs ordisbursements.
The appeal and cross appeal from the intermediate order must be dismissed because the rightof direct appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal and cross appeal from theorder are brought up for review and have been considered on the appeal and cross appeal fromthe judgment (see CPLR 5501 [a] [1]).
The parties entered into a contract for the sale of certain real estate. A rider to the contractprovided that the down payment would be made in two installments of $212,500 each. The [*2]defendant contends that, in the event of its default, the plaintiffswere only entitled to recover the first installment, which had already been paid. This contentionis without merit.
When the terms of a written contract are clear and unambiguous, the intent of the partiesmust be found within the four corners of the contract, giving practical interpretation to thelanguage employed and the parties' reasonable expectations (see Franklin Apt. Assoc., Inc. vWestbrook Tenants Corp., 43 AD3d 860 [2007]; Correnti v Allstate Props., LLC, 38AD3d 588 [2007]). The court's role is limited to interpretation and enforcement of the termsagreed to by the parties, and the court may not rewrite the contract or impose additional termswhich the parties failed to insert (see Matter of Salvano v Merrill Lynch, Pierce, Fenner &Smith, 85 NY2d 173, 182 [1995]; Aivaliotis v Continental Broker-Dealer Corp., 30AD3d 446 [2006]). Here, the amount of the down payment as set forth in the contract was$425,000 and, pursuant to the contract, the plaintiffs were permitted to recover that amount in theevent of a default by the defendant (see Elias v Wal-Mart Stores, 224 AD2d 479 [1996]).
The defendant's contention that it was not in default when it cancelled the contract is withoutmerit. The defendant allegedly cancelled the contract due to the plaintiffs' delay in obtaining afully executed lease modification agreement, which was a contractual contingency that had to besatisfied prior to closing. The defendant cancelled the contract just over a month before theclosing date. Neither the contract nor the rider made time of the essence. Where, as here, thecontract did not make time of the essence, a party is entitled to a reasonable adjournment of theclosing date to complete performance of its obligations (see Chappaqua Bldg. Corp. v RGFDev. Corp., 173 AD2d 671 [1991]).
Here, however, the plaintiffs did not require an adjournment, as the defendant cancelled thecontract more than one month prior to the closing date. Therefore, the defendant's cancellation ofthe contract when the deadline for obtaining the lease modification agreement had not yet passed,constituted a wrongful repudiation of the contract (see American List Corp. v U.S. News &World Report, 75 NY2d 38, 44 [1989]). The defendant had no grounds under the contract torefuse to consummate the purchase.
The plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law onthe first cause of action to recover the portion of the down payment already paid (see Willseyv Gjuraj, 65 AD3d 1228 [2009]; New Colony Homes, Inc. v Long Is. Prop. Group,LLC, 21 AD3d 1072 [2005]), and the second cause of action to recover the balance of thedown payment. The plaintiffs established that the defendant defaulted on the contract, and thedefendant failed to raise a triable issue of fact in opposition.
The Supreme Court properly granted that branch of the defendant's motion which was forsummary judgment with respect to the plaintiffs' third cause of action for a judgment declaringthat the defendant was obligated to assume the tenant's lease obligations. The defendantestablished its entitlement to judgment as a matter of law, and the plaintiff failed to raise a triableissue of fact in opposition. The contract of sale and the lease modification agreement are notseparate, independent agreements. In determining whether contracts are separable or entire, theprimary standard is the intent manifested, viewed in the surrounding circumstances (seeRudman v Cowles Communications, 30 NY2d 1, 13 [1972]; G.K. Alan Assoc. Inc. vLazzari, 66 AD3d 830 [2009]). Contracts remain separate unless their history and subjectmatter show them to be unified (see Nancy Neale Enters. v Eventful Enters., 260 AD2d453 [1999]; National Union Fire Ins. Co. of Pittsburgh, Pa. v Williams, 223 AD2d 395[1996]). Here, the contract and the lease modification agreement deal with the same subjectmatter. The lease modification agreement is not supported by independent consideration (cf.Wattenberg v Wattenberg, 277 AD2d 69 [2000]). The two documents serve the samepurpose and refer to each other. The evidence shows that the parties intended the two documentsto be interdependent and to be read together (cf. Schonfeld v Thompson, 243 AD2d 343[1997]; National Union Fire Ins. Co. of Pittsburgh, Pa. v Clairmont, 231 AD2d 239[1997]).
Since this is, in part, a declaratory judgment action, the judgment appealed from should haveincluded an appropriate declaration in favor of the defendant (see Lanza v Wagner, 11NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US901 [1962]). Dillon, J.P., Covello, Florio and Hall, JJ., concur.