Griffin's Landscaping Corporation (Corp.), respondent, v. Philip F. Bisesto, appellant.

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

Griffin's Landscaping Corporation (Corp.), respondent, v. Philip F. Bisesto, appellant.

2011–01800 (Index No. 686/09)

Decided: September 27, 2011

WILLIAM F. MASTRO, J.P. RUTH C. BALKIN CHERYL E. CHAMBERS PLUMMER E. LOTT, JJ. Handel & Carlini, LLP, Poughkeepsie, N.Y. (Anthony C. Carlini, Jr., of counsel), for appellant. Miles L. Markowitz, Millbrook, N.Y., for respondent.

Submitted—September 9, 2011

DECISION & ORDER

In an action for specific performance of a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Putnam County (Nicolai, J.), dated January 12, 2011, which, after a nonjury trial, directed him to convey the subject real property to the plaintiff.

ORDERED that on the Court's own motion, the notice of appeal is deemed an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is affirmed, with costs.

“As this case was tried to the court, without a jury, this Court's power to review the evidence is as broad as that of the trial court, with appropriate regard given to the decision of the trial judge who was in a position to assess the credibility of the witnesses” (Bubba's Bagels of Wesley Hills, Inc. v Bergstol, 18 AD3d 411, 412;  see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 N.Y.2d 492, 499).   Contrary to the defendant's contention, the terms of the parties' agreement and the trial evidence regarding the parties' course of conduct thereunder amply demonstrated that the parties mutually intended to credit the monthly payments made by the plaintiff toward the total purchase price of the subject real property, and to forego reliance upon the purchase money mortgage provision in their agreement (see generally B. Reitman Blacktop, Inc. v Missirlian, 52 AD3d 752, 753–754).   Having acquiesced in this course of conduct for a period of approximately 10 years, during which time the plaintiff's payments exceeded the agreed purchase price of the property and the plaintiff paid all of the expenses associated with the property such that it would suffer “unconscionable injury” (American Bartenders School v. 105 Madison Co., 59 N.Y.2d 716, 718) if specific performance was not granted, the defendant is estopped from now asserting that the contract is unenforceable (see e.g. Piga v. Rubin, 300 A.D.2d 68,69;  Blechner v. Pecoraro, 164 A.D.2d 878, 880).

The defendant's remaining contentions are without merit.

MASTRO, J.P., BALKIN, CHAMBERS and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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