SCHAPFEL v. TAYLOR

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

Dieter SCHAPFEL, respondent, v. Thomas A. TAYLOR, et al., appellants.

Decided: August 18, 2009

ROBERT A. SPOLZINO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ. Wickham, Bressler, Gordon & Geasa, P.C., Mattituck, N.Y. (Eric J. Bressler of counsel), for appellants. John T. Roesch, East Meadow, N.Y., for respondent.

In an action, inter alia, to recover damages for breach of a contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Suffolk County (Molia, J.), dated May 7, 2008, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The defendants' contention that the plaintiff's waiver argument is precluded by the “no oral modifications” clause of the subject contract is without merit.  “[A] contracting party may orally waive enforcement of a contract term notwithstanding a provision to the contrary in the agreement” (Bank Leumi Trust Co. v. Block 3102 Corp., 180 A.D.2d 588, 590, 580 N.Y.S.2d 299, citing Alside Aluminum Supply Co. v. Berliner, 32 A.D.2d 731, 302 N.Y.S.2d 180;  see Baker v. Norman, 226 A.D.2d 301, 303, 643 N.Y.S.2d 30;  Dellicarri v. Hirschfeld, 210 A.D.2d 584, 619 N.Y.S.2d 816).   More particularly, a party is estopped from denying that his or her “attorney's communication constitutes a waiver of the time limit contained in the mortgage contingency provision on the traditional equitable ground that plaintiffs incurred a substantial detriment (forfeiture of their down payment) by changing their course of conduct (as contemplated under the contract) in reliance on the statement, which was in all respects reasonable” (Baker v. Norman, 226 A.D.2d at 304, 643 N.Y.S.2d 30;  see Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 397 N.Y.S.2d 922, 366 N.E.2d 1279;  Donald v. Barbato, 27 A.D.3d 414, 810 N.Y.S.2d 665).   Here, in opposition to the defendants' prima facie showing of their entitlement to judgment as a matter of law, the plaintiff raised triable issues of fact as to whether the statements and conduct of the defendant Abigail Wickham constituted a waiver of the time limit contained in the mortgage contingency provision of the parties' contract inducing the plaintiff to justifiably rely thereupon to his detriment (see Baker v. Norman, 226 A.D.2d at 304, 643 N.Y.S.2d 30).   Accordingly, the Supreme Court correctly denied the defendants' motion.

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