131 v. C.J. Jon Corp., appellant-respondent.

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

131 Heartland Blvd. Corp., etc., et al., respondents- appellants, v. C.J. Jon Corp., appellant-respondent.

2009–10591 2009–10592 (Index No. 158/09)

Decided: March 29, 2011

MARK C. DILLON, J.P. JOSEPH COVELLO ANITA R. FLORIO L. PRISCILLA HALL, JJ. Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (Douglas E. Rowe and Yale Pollack of counsel), for appellant-respondent. Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (E. Christopher Murray and Matthew F. Didora of counsel), for respondents-appellants.

Argued—January 25, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and for a judgment declaring that the defendant is required to assume the obligations of the former tenant under the former tenant's lease with the plaintiff, the defendant appeals, as limited by its brief, (1) from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated October 7, 2009, as granted those branches of the plaintiffs' motion which were for summary judgment on the first and second causes of action of the complaint and denied those branches of its cross motion which were for summary judgment dismissing the first and second causes of action and on its counterclaim, and (2) from so much of a judgment of the same court entered November 5, 2009, as, upon the order, is in favor of the plaintiffs and against it in the principal sum of $425,000;  and the plaintiffs cross-appeal from (1) so much of the same order as denied that branch of their motion which was for summary judgment on the third cause of action and granted that branch of the defendant's motion which was for summary judgment dismissing the third cause of action, and (2) so much of the same judgment as, upon the order, dismissed the third cause of action.

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

ORDERED that the judgment is modified, on the law, by adding a provision thereto declaring that the defendant is not required to assume the obligations of the former tenant under the former tenant's lease with the plaintiff;  as so modified, the judgment is affirmed, without costs or disbursements.

The appeal and cross appeal from the intermediate 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).   The issues raised on the appeal and cross appeal from the order are brought up for review and have been considered on the appeal and cross appeal from the judgment (see CPLR 5501[a][1] ).

The parties entered into a contract for the sale of certain real estate.   A rider to the contract provided that the down payment would be made in two installments of $212,500 each.   The defendant contends that, in the event of its default, the plaintiffs were only entitled to recover the first installment, which had already been paid.   This contention is without merit.

When the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations (see Franklin Apt. Assoc., Inc. v Westbrook Tenants Corp., 43 AD3d 860;  Correnti v. Allstate Props., LLC, 38 AD3d 588).   The court's role is limited to interpretation and enforcement of the terms agreed to by the parties, and the court may not rewrite the contract or impose additional terms which the parties failed to insert (see Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 N.Y.2d 173, 182;  Aivaliotis v Continental Broker–Dealer Corp., 30 AD3d 446).   Here, the amount of the down payment as set forth in the contract was $425,000 and, pursuant to the contract, the plaintiffs were permitted to recover that amount in the event of a default by the defendant (see Elias v. Wal–Mart Stores, 224 A.D.2d 479).

The defendant's contention that it was not in default when it cancelled the contract is without merit.   The defendant allegedly cancelled the contract due to the plaintiffs' delay in obtaining a fully executed lease modification agreement, which was a contractual contingency that had to be satisfied prior to closing.   The defendant cancelled the contract just over a month before the closing date.   Neither the contract nor the rider made time of the essence.   Where, as here, the contract did not make time of the essence, a party is entitled to a reasonable adjournment of the closing date to complete performance of its obligations (see Chappaqua Bldg. Corp. v. RGF Dev. Corp., 173 A.D.2d 671).

Here, however, the plaintiffs did not require an adjournment, as the defendant cancelled the contract more than one month prior to the closing date.   Therefore, the defendant's cancellation of the contract when the deadline for obtaining the lease modification agreement had not yet passed, constituted a wrongful repudiation of the contract (see American List Corp. v. U.S. News & World Report, 75 N.Y.2d 38, 44).   The defendant had no grounds under the contract to refuse to consummate the purchase.

The plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law on the first cause of action to recover the portion of the down payment already paid (see Willsey v. Gjuraj, 65 AD3d 1228;  New Colony Homes, Inc. v. Long Is. Prop. Group, LLC, 21 AD3d 1072), and the second cause of action to recover the balance of the down payment.   The plaintiffs established that the defendant defaulted on the contract, and the defendant failed to raise a triable issue of fact in opposition.

The Supreme Court properly granted that branch of the defendant's motion which was for summary judgment with respect to the plaintiffs' third cause of action for a judgment declaring that the defendant was obligated to assume the tenant's lease obligations.   The defendant established its entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact in opposition.   The contract of sale and the lease modification agreement are not separate, independent agreements.   In determining whether contracts are separable or entire, the primary standard is the intent manifested, viewed in the surrounding circumstances (see Rudman v. Cowles Communications, 30 N.Y.2d 1, 13;  G.K. Alan Assoc., Inc. v. Lazzari, 66 AD3d 830).   Contracts remain separate unless their history and subject matter show them to be unified (see Nancy Neale Enters. v. Eventful Enters., 260 A.D.2d 453;  National Union Fire Ins. Co. of Pittsburgh, Pa. v Williams, 223 A.D.2d 395).   Here, the contract and the lease modification agreement deal with the same subject matter.   The lease modification agreement is not supported by independent consideration (cf.  Wattenberg v. Wattenberg, 277 A.D.2d 69).   The two documents serve the same purpose and refer to each other.   The evidence shows that the parties intended the two documents to be interdependent and to be read together (cf.  Schonfeld v. Thompson, 243 A.D.2d 343;  National Union Fire Ins. Co. of Pittsburgh, Pa. v Clairmont, 231 A.D.2d 239).

Since this is, in part, a declaratory judgment action, the judgment appealed from should have included an appropriate declaration in favor of the defendant (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).

DILLON, J.P., COVELLO, FLORIO and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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