SECOND AVE REALTY LLC v. 1355 SECOND OWNER LLC (2018)

Orders, Supreme Court, New York County (O. Peter Sherwood, J.), entered May 26, 2017 and November 6, 2017, which, to the extent appealed from as limited by the briefs, granted defendants' motions to dismiss the causes of action for breach of contract against defendant 1355 Second Owner LLC, breach of contract and of fiduciary duty against defendant Fidelity National Title Insurance Services LLC, and aiding and abetting breach of fiduciary duty against 1355 Second Owner and defendant SL Green Realty Corp., unanimously affirmed, with costs.

Plaintiff alleges that defendant 1355 Second Owner LLC (the buyer) breached the agreement pursuant to which it would purchase from plaintiff a multi-use building in Manhattan.  Plaintiff concedes that it failed to meet the condition precedent that it deliver the building “vacant, free of all residential tenancies and occupancies,” which would relieve the buyer of its duty to close on the purchase (see Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 693, 636 N.Y.S.2d 734, 660 N.E.2d 415 [1995] ), but argues that the buyer waived the condition precedent.

The documentary evidence conclusively establishes that there was no waiver of the condition precedent (see Jacoby & Meyers v. Crispi, 205 A.D.2d 312, 313, 613 N.Y.S.2d 13 [1st Dept. 1994] ).  The agreement required that any waiver be express and in writing.  The January 6, 2016 letter and January 7, 2016 email written by buyer's counsel on which plaintiff relies do not mention either waiver or the vacancy condition precedent.  Indeed, they do not appear to address these issues at all.  They focus on a dispute over a different but related provision of the agreement, which obligated plaintiff to use its best efforts to bring about the fulfillment of the condition precedent.

Given the dismissal of the contract claim against the buyer, plaintiff's claim against the escrow agent (National Fidelity) for releasing the deposit to the buyer was limited to the contractual reimbursement amount of $70,000.  That amount having been paid, the court correctly dismissed the breach of contract and fiduciary duty claims against the escrow agent and the aiding and abetting breach of fiduciary duty claims.