GSG HOLDINGS INC v. MULTI BORO REALTY CORP (1997)

Order, Supreme Court, New York County (Walter Schackman, J.), entered May 22, 1996, which, in actions involving the enforceability of a contract for the purchase of shares in a cooperative housing corporation, inter alia, granted motions for summary judgment by the seller and the corporation dismissing the respective complaints, unanimously affirmed, with costs.

 Paragraph 16 of the contract of sale authorizes the seller to cancel “[i]f Seller shall be unable to transfer the Lease and the Shares in accordance with this Contract for any reason not due to Seller's willful acts or omissions”.   The seller here, having expended considerable time, effort and money, including the commencement of legal action, in attempting to compel the corporation's transfer of the subject shares and proprietary leases to the prospective buyer, ultimately was unwilling to continue the litigation, preferring to avail itself of its contractual right of cancellation “for any reason” not attributable to its willful acts or omissions.   There being no evidence of any willful acts or omissions by the seller, and as the contract of sale does not impose any affirmative obligation upon the seller to force the corporation to transfer the shares and proprietary leases (see, Weisner v. 791 Park Ave. Corp., 6 N.Y.2d 426, 433, 190 N.Y.S.2d 70, 160 N.E.2d 720), the seller's cancellation was effective.   The prospective buyer cannot be heard to demand that the corporation comply with various provisions of the proprietary leases and the offering plan that assertedly require its transfer of the subject shares, since said buyer has no contract with the corporation and is not beneficiary of the instruments it seeks to enforce (Sims v. Darwood Mgt., 147 A.D.2d 373, 376-377, 537 N.Y.S.2d 539).

MEMORANDUM DECISION.