| 2626 Bway LLC v Broadway Metro Assoc., LP |
| 2011 NY Slip Op 04759 [85 AD3d 456] |
| June 7, 2011 |
| Appellate Division, First Department |
| 2626 Bway LLC, Appellant, v Broadway Metro Associates,LP, et al., Respondents. |
—[*1] Reavis Parent Lehrer LLP, New York (Lawrence Brocchini of counsel), forrespondents.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about January22, 2010, which granted defendants' motion to dismiss the complaint, unanimously affirmed,with costs.
Plaintiff purchaser alleges that defendant seller Broadway Metro Associates, LPanticipatorily breached the contract for the purchase of real property by, inter alia, its inability toconvey title with certain development rights purportedly provided to the seller in a recordedzoning lot development agreement (ZLDA) made between the seller and an adjoining propertyowner. However, neither the contract of sale nor the ZLDA provide for the development rightsclaimed by plaintiff to exist. These agreements are unambiguous and must be enforced as written(see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).
The ZLDA and an agreement entered into between the seller and the adjoining propertyowner specifically conveyed to the adjoining property owner a light and air easement beginning15 feet above the parapet wall of the roof of the subject premises. However, the fact that the areacovered by the easement does not begin until 15 feet above the parapet wall does not provide theseller with the right to add to the premises up to that point or create any obligation on the part ofthe adjoining property owner to protect such right. The ZLDA's only protection of a right to buildon the roof is the retention of Broadway Metro's right to use that area "for mechanical equipment. . . or any other devices." Under the rule of construction inclusio unius est exclusioalterius, the expression of a specific guarantee of use implies the exclusion of any other guaranteeof use (see Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396, 404[1984]; Matter of New York CityAsbestos Litig., 41 AD3d 299, 302 [2007]).
Since the contract of sale was specifically made "SUBJECT TO" the ZLDA and included theZLDA as a "Permitted Exception" to the conveyance of title, the seller was under no obligation toconvey title in the manner claimed by plaintiff and thus, plaintiff's attempt to hold the seller inbreach for this purported defect is unavailing.
Defendant seller's unilateral scheduling of a clear and unequivocal "time of the essence"[*2]closing date on three-weeks' written notice was reasonableunder the circumstances (cf. ADCOrange, Inc. v Coyote Acres, Inc., 7 NY3d 484, 490 [2006]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Renwick and RomÁn, JJ. [PriorCase History: 2009 NY Slip Op 33002(U).]