ZULLO v. VARLEY (2008)

In an action, inter alia, for the return of a down payment given pursuant to a contract for the sale of real property, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Loehr, J.), dated April 11, 2008, which granted the motion of the defendants William Varley and Jean Varley for summary judgment dismissing the complaint insofar as asserted against them and on their counterclaim for retention of the down payment, and denied the plaintiffs' cross motion for summary judgment on the complaint, and (2) a judgment of the same court dated May 12, 2008, which, upon the order, is in favor of the defendants William Varley and Jean Varley and against them, directing, inter alia, the release from escrow of the sum of $99,900, and the payment of that sum to those defendants.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants William Varley and Jean Varley.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

 “Where possible, a contract should be interpreted to avoid inconsistencies and to give meaning to all of its provisions, giving a practical and reasonable interpretation to the language employed and the parties' reasonable expectations with respect thereto” (Malleolo v. Malleolo, 287 A.D.2d 603, 603-604, 731 N.Y.S.2d 752;  see W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639).   Therefore, “a court should not adopt an interpretation which would leave any provision without force and effect” (Gonzalez v. Norrito, 256 A.D.2d 440, 440, 682 N.Y.S.2d 100).

 Contrary to the plaintiffs' contention, the defendants William Varley and Jean Varley (hereinafter the Varleys) did not breach the contract of sale when, in response to a notice of violation dated October 3, 2007, issued by the Town of East Hampton, indicating that the subject property had been overcleared in violation of the Town Code, they revegetated the property, thereby removing the violation.   Pursuant to paragraph 10(a) of the contract, entitled Governmental Violations and Orders (hereinafter the violations provision), the Varleys were required to remediate the conditions described in the notice of violation as of the date of closing, which they did.   Further, to construe the provisions of the contract obligating the plaintiffs to accept the property in its “as is” condition, as precluding the Varleys from complying with the violations provision, would render the violations provision meaningless.

 Thus, after the Varleys provided unequivocal notice that they were setting a closing date of December 14, 2007, where time was of the essence, and that the plaintiffs' failure to comply would be considered a default (see Somma v. Richardt, 52 A.D.3d 813, 814, 861 N.Y.S.2d 720;  Guippone v. Gaias, 13 A.D.3d 339, 340, 786 N.Y.S.2d 112;  compare Moray v. DBAG, Inc., 305 A.D.2d 472, 473, 760 N.Y.S.2d 193), the plaintiffs' refusal to attend the closing constituted an anticipatory breach (see Yitzhaki v. Sztaberek, 38 A.D.3d 535, 831 N.Y.S.2d 267).   Accordingly, the Supreme Court correctly directed the escrow agent to release, to the Varleys, the 10% down payment in the sum of $99,900, as liquidated damages in accordance with the terms of the contract (see Hegner v. Reed, 2 A.D.3d 683, 685, 770 N.Y.S.2d 87;  Ittleson v. Barnett, 304 A.D.2d 526, 758 N.Y.S.2d 360;  see also Maxton Bldrs. v. Lo Galbo, 68 N.Y.2d 373, 378, 509 N.Y.S.2d 507, 502 N.E.2d 184).

The plaintiffs' remaining contentions are without merit.