HOLLAND v. RYAN (2003)

Plaintiff and defendants executed a real estate purchase and sale agreement (Agreement) wherein defendants were to sell real property to plaintiff for $31,000.   When defendants failed to close on the sale, plaintiff commenced this action seeking specific performance of the Agreement and, after joinder of issue, moved for summary judgment.   We conclude that plaintiff is not entitled to summary judgment and therefore reverse the order and judgment granting the motion.

 In support of the motion, plaintiff established that he was ready, willing, and able to perform his obligations under the Agreement on the date set for the closing as well as on a later date set forth in a “time of the essence” letter (see Eichenstein v. Glassman, 302 A.D.2d 421, 754 N.Y.S.2d 577;  Bainbridge-Wythe Partnership v. Niagara Falls Urban Renewal Agency, 294 A.D.2d 806, 807, 742 N.Y.S.2d 176, lv. denied 98 N.Y.2d 613, 751 N.Y.S.2d 168, 780 N.E.2d 979).   The allegations of defendants concerning an oral collateral agreement for the payment of an additional $50,000, as set forth in their verified answer and verified amended answer and in their affidavit in opposition to the motion, do not raise a triable issue of fact whether the true purchase price was $81,000.   An agreement conveying an interest in real property must be in writing and signed by the party to be charged (see General Obligations Law § 5-703[2];  Needel v. Flaum, 248 A.D.2d 957, 958, 670 N.Y.S.2d 285;  Stark v. Fry, 129 A.D.2d 237, 239, 517 N.Y.S.2d 643), and thus “[e]nforcement of the alleged oral agreement is barred by the statute of frauds” (Dates v. Key Bank N.A., 300 A.D.2d 1090, 1090, 751 N.Y.S.2d 892;  see Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 235, 689 N.Y.S.2d 674, 711 N.E.2d 953).   Additionally, “[t]he parol evidence rule bars admission of antecedent or contemporaneous oral representations to vary or add to the terms of a written agreement” (SAA-A, Inc. v. Morgan Stanley Dean Witter & Co., 281 A.D.2d 201, 203, 721 N.Y.S.2d 640;  see Marine Midland Bank-Southern v. Thurlow, 53 N.Y.2d 381, 387, 442 N.Y.S.2d 417, 425 N.E.2d 805).   Here, the Agreement was a “completely integrated contract preclud[ing] extrinsic proof to add to or vary its terms” (Matter of Primex Intl. Corp. v. Wal-Mart Stores, 89 N.Y.2d 594, 600, 657 N.Y.S.2d 385, 679 N.E.2d 624).

 Defendants' further contention that plaintiff is not entitled to specific performance because he failed to comply with two alleged conditions precedent to performance of the Agreement is without merit.   The condition that plaintiff relocate a flowering tree to defendants' property was not a condition precedent because it was not an event that was required to occur “ ‘before performance under [the] contract [became] due’ ” (Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 112, 472 N.Y.S.2d 592, 460 N.E.2d 1077;  see Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690, 636 N.Y.S.2d 734, 660 N.E.2d 415).   Nor are defendants entitled to rely on the condition that plaintiff sign the Agreement before June 20, 2001 where, as here, they have “ ‘frustrated or prevented the occurrence of the condition’ ” by failing to submit the Agreement to plaintiff for his signature before that date (A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d 20, 31, 677 N.Y.S.2d 9, 699 N.E.2d 368, rearg. denied 92 N.Y.2d 920, 680 N.Y.S.2d 461, 703 N.E.2d 273, quoting Kooleraire Serv. & Installation Corp. v. Board of Educ. of City of N.Y., 28 N.Y.2d 101, 106, 320 N.Y.S.2d 46, 268 N.E.2d 782).   In any event, by modifying the terms of the original agreement, plaintiff made a counteroffer, which was accepted by defendants (cf.  Helmsley-Spear, Inc. v. Kupferschmid, 301 A.D.2d 442, 752 N.Y.S.2d 884), and “[a]cceptance of this counteroffer would supersede any inconsistent term in the original offer” (Homayouni v. Paribas, 241 A.D.2d 375, 376, 660 N.Y.S.2d 413).

 We nevertheless conclude that plaintiff is not entitled to summary judgment.  “A more troublesome issue * * * appears in the record” (Janke v. Janke, 47 A.D.2d 445, 449, 366 N.Y.S.2d 910, affd. for the reasons stated 39 N.Y.2d 786, 385 N.Y.S.2d 286, 350 N.E.2d 617).   Although the issue of unclean hands is not raised in opposition to the motion or, indeed, on appeal, the record contains sworn statements of defendants that the parties agreed to a side payment of $50,000 to enable plaintiff to avoid a higher assessed value for the property.   Defendants' sworn statements are sufficient to raise a triable issue of fact whether the basis of this action “is immoral and one to which equity will not lend its aid” (Muscarella v. Muscarella, 93 A.D.2d 993, 993, 461 N.Y.S.2d 621).   Although defendants did not raise the issue of unclean hands in opposition to the motion or on appeal, this Court is not precluded from raising the issue sua sponte for the first time on appeal (see id. at 993-994, 461 N.Y.S.2d 621;  Janke, 47 A.D.2d at 449-450, 366 N.Y.S.2d 910).   This is done “not to favor defendant[s], but as a matter of public policy” (Janke, 47 A.D.2d at 450, 366 N.Y.S.2d 910).   Because there is a triable issue of fact whether plaintiff has unclean hands, we reverse the order and judgment and deny plaintiff's motion for summary judgment.

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously reversed on the law and in the exercise of discretion without costs and the motion is denied.

MEMORANDUM: