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Supreme Court, Appellate Division, First Department, New York.

GATEWAY DETROIT ASSOCIATES, L.L.C., Plaintiff-Appellant, v. The WITKOFF GROUP, L.L.C., et al., Defendants-Respondents.

Decided: February 15, 2001

SULLIVAN, P.J., ANDRIAS, WALLACH, SAXE and FRIEDMAN, JJ. Richard D. Emery, for Plaintiff-Appellant. David C. Segal, for Defendants-Respondents.

Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about April 24, 2000, which, inter alia, granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1), unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.   Order, same court and Justice, entered on or about August 24, 2000, which, to the extent appealable, denied plaintiff's motion for renewal, unanimously dismissed as academic, without costs.

In this action, plaintiff argues that Article 12.02 of the parties' contract entitles it to specific performance of the sale of the subject real property.   In so arguing, it notes that this Article permitted such relief if all conditions precedent to closing were accomplished.   Defendant, on the other hand, contends that Article 3.01 barred such relief because it provided for a termination of the contract if the closing did not take place on or before December 31, 1998, which did not occur.   Thus, defendant asserts, even if all conditions precedent to closing were accomplished, the contract automatically terminated on December 31, 1998.   Supreme Court, concluding that the contract was clear and unambiguous on its face, dismissed the complaint, relying upon Article 3.01.   This was error.

Examination of the contract shows that the intended significance of Articles 12.02 and 3.01 is not readily ascertainable from the face of the contract.   Thus, while Article 12.02 seems to provide for a right of specific performance if all conditions precedent to closing are accomplished, Article 3.01 seems to provide for a termination of the parties' obligations if the closing does not take place by the stated date.   In view of this conflict and the differing explanations as to how these Articles were to be applied, it cannot be said that the documentary evidence submitted entitled either of the parties to judgment as a matter of law (see, CPLR 3211[a][1];  cf., Hartford Acc. & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172, 350 N.Y.S.2d 895, 305 N.E.2d 907;  Gen. Phoenix Corp. v. Cabot, 300 N.Y. 87, 89 N.E.2d 238).