Approved Properties, Inc. v. City of New York

• Decision Date: 25 August 1966
• Citation: 277 N.Y.S.2d 236,52 Misc.2d 956
• Parties: APPROVED PROPERTIES, INC., Plaintiff, v. The CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

Page 236

277 N.Y.S.2d 236

52 Misc.2d 956

APPROVED PROPERTIES, INC., Plaintiff, v. The CITY OF NEW YORK, Defendant.

Supreme Court, Trial Term, Richmond County, Part II.

Aug. 25, 1966.

[52 Misc.2d 957] Philip Meltzer, New York City, for plaintiff.

J. Lee Rankin, Corp. Counsel (Percival Sprung, Rego Park, of counsel), for defendant.

MEMORANDUM

JOHN J. KELLY, Justice.

In this action the plaintiff-purchaser in its complaint and the defendant-seller in its counterclaim seek specific performance of a contract for the purchase and sale of real property. The issues requiring determination arise from plaintiff's claim for an abatement in the purchase price.

At an auction sale conducted by the defendant on December 18, 1963, plaintiff was the successful bidder for premises No. 42 Amity Place, in this county, an irregular parcel, 42 by 101 feet, and improved with a two and one-half story frame dwelling. The purchase price was $6,000. The terms and conditions of the Memorandum of Sale provided that $1,200 be paid at the time of sale; $1,800 within sixty days thereafter; and $3,000 by the execution by the plaintiff of a purchase money mortgage on the closing of title ninety days after the date of sale, viz., March 18, 1964. The Memorandum of sale further provided that (1) 'The risk of loss or damage by fire between the date of sale and the date of delivery of the deed is assumed by the purchaser' and, (2) 'The successful bidder will be required to accept the property in its 'as is' condition on the date of closing of title.' The plaintiff has paid $3,000 but has refused to execute the purchase money mortgage. It claims that between the date of sale on December 18, 1963, and the date fixed for closing of title on March 18, 1964, damages occurred to the building by reason of acts of vandalism and, to the extent of the damage caused thereby, it is entitled to an abatement in the purchase price. The defendant contends that no such damage occurred to the building and, additionally, asserts that even should such damage have occurred the plaintiff is not entitled to an abatement in the purchase price because it is 'required to accept the property in its 'as is' condition on the date of closing of title' as provided in the Memorandum of Sale.

Notwithstanding defendant's contention to the contrary, I find that between the date of sale and the date fixed for closing of title, and more specifically between January 14, 1963 and February 14, 1963, damages were sustained to the buildings from acts of vandalism of unknown origin without any negligence on the part of either of the parties hereto, and that the total repair and replacement value of the items damaged is $198, as more fully set forth in the schedule of the damaged items and the repair and replacement value thereof annexed hereto.

Nor does the 'as is' clause in the Memorandum of Sale bar an abatement in the purchase price to the extent of the amount of such damages.

While it was formerly the rule that, in the absence of express contract provision to the contrary, the risk of loss between contract and closing was on the purchaser (Sewell v. Underhill, 197 N.Y. 168, 90 N.E. 430, 27 L.R.A.,N.S., 233), the rule has been otherwise by statute for well over a quarter century. The statute (General Obligations Law, sec. 5--1311, subd. 1, par. a(2)) provides that where neither title nor possession has been transferred to the...