| Griffin's Landscaping Corp. (Corp.) v Bisesto |
| 2011 NY Slip Op 06823 [87 AD3d 1111] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Griffin's Landscaping Corporation (Corp.),Respondent, v Philip F. Bisesto, Appellant. |
—[*1] Miles L. Markowitz, Millbrook, N.Y., for respondent.
In an action for specific performance of a contract for the sale of real property, the defendantappeals from an order of the Supreme Court, Putnam County (Nicolai, J.), dated January 12,2011, which, after a nonjury trial, directed him to convey the subject real property to the plaintiff.
Ordered that on the Court's own motion, the notice of appeal is deemed an application forleave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed, with costs.
"As this case was tried to the court, without a jury, this Court's power to review the evidenceis as broad as that of the trial court, with appropriate regard given to the decision of the trialjudge who was in a position to assess the credibility of the witnesses" (Bubba's Bagels of Wesley Hills, Inc. vBergstol, 18 AD3d 411, 412 [2005]; see Northern Westchester Professional ParkAssoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Contrary to the defendant'scontention, the terms of the parties' agreement and the trial evidence regarding the parties' courseof conduct thereunder amply demonstrated that the parties mutually intended to credit themonthly payments made by the plaintiff toward the total purchase price of the subject realproperty, and to forgo reliance upon the purchase money mortgage provision in their agreement(see generally B. Reitman Blacktop, Inc.v Missirlian, 52 AD3d 752, 753-754 [2008]). Having acquiesced in this course ofconduct for a period of approximately 10 years, during which time the plaintiff's paymentsexceeded the agreed purchase price of the property and the plaintiff paid all of the expensesassociated with the property such that it would suffer "unconscionable injury" (AmericanBartenders School v 105 Madison Co., 59 NY2d 716, 718 [1983]) if specific performancewas not granted, the defendant is estopped from now asserting that the contract is unenforceable(see e.g. Piga v Rubin, 300 AD2d 68, 69 [2002]; Blechner v Pecoraro, 164 AD2d878, 880 [1990]).
The defendant's remaining contentions are without merit. Mastro, J.P., Balkin, Chambers andLott, JJ., concur.