GOLFO v. KYCIA ASSOCIATES INC (2007)

In an action, inter alia, for specific performance of contracts for the sale of real property, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated June 29, 2006, as denied their motion for summary judgment on the first cause of action and granted those branches of the defendants' cross motion which were for summary judgment dismissing the complaint and for cancellation of a notice of pendency recorded against the subject property.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The parties entered into four contracts for the purchase and sale of four contiguous parcels of certain real property.   The contracts provided that if the closing did not occur by September 30, 2001, for any reason except the defendants' default, the defendants had a right to cancel the contracts.   The plaintiffs allegedly discovered a defect in the property and attempted to renegotiate the contracts.   As a result, the closing did not occur by the designated date.   However, the defendants did not attempt to exercise the cancellation clause until March 2002.   The plaintiffs rejected the cancellation, filed a notice of pendency, and commenced the instant action, inter alia, for specific performance.

Upon the completion of the depositions of the parties, as well as their counsel in the underlying real estate transaction, the parties moved for summary judgment.   As relevant here, the Supreme Court granted those branches of the defendants' cross motion which were for summary judgment dismissing the complaint and for cancellation of the notice of pendency filed with respect to the subject property, on the ground that the defendants had not waived their right to cancel the contracts when the closing did not occur by the date specified in the contracts.

 A valid waiver “requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver would have been enforceable” (Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265;  see Gresser v. Princi, 128 A.D.2d 752, 753, 513 N.Y.S.2d 462).   It may arise by either an express agreement or by such conduct or a failure to act as to evince an intent not to claim the purported advantage (see Hadden v. Consolidated Edison Co. of N.Y., 45 N.Y.2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136;  Gresser v. Princi, 128 A.D.2d at 753, 513 N.Y.S.2d 462).   A waiver “is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” (Peck v. Peck, 232 A.D.2d 540, 540, 649 N.Y.S.2d 22).   Rather, there must be proof that there was a voluntary and intentional relinquishment of a known and otherwise enforceable right (see Peck v. Peck, 232 A.D.2d 540, 649 N.Y.S.2d 22).

 Here, the defendants made a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Ilardi v. Inte-Fac Corp., 290 A.D.2d 490, 736 N.Y.S.2d 401).   The deposition testimony established that the defendants did not waive their right to cancel the contracts although the September 30, 2001, deadline had passed.   We additionally note that the plaintiffs' real estate counsel conceded as much in his deposition.   In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Accordingly, the Supreme Court properly granted those branches of the defendants' cross motion which were for summary judgment dismissing the complaint and for cancellation of the notice of pendency filed with respect to the subject property.

The plaintiffs' remaining contentions are without merit.