Artstrong Homes, Inc. v. Vasa
| Decision Date | 28 April 1960 |
| Citation | 201 N.Y.S.2d 138,23 Misc.2d 608 |
| Parties | ARTSTRONG HOMES, INC., Plaintiff, v. Harold H. VASA and Mildred Vasa, Sidney Goldman and Rona Goldman, Defendants. |
| Court | New York Supreme Court |
Jesse Margolin, New York City, for plaintiff.
Alfred Rubinstein, Hicksville, for defendants Vasa.
Leo Katzman, Forest Hills, for defendants Goldman.
The contract which is the basis of this action was entered into by plaintiff and defendants Vasa on July 1, 1958 and covered a parcel in East Rockaway 75 feet in width, fronting on Bulaire Road, and of a depth of 75.5 feet. On the date of the contract, the Vasas held in single ownership both the subject parcel and a parcel 75 feet in width, fronting on Cathay Road and the rear line of which is contiguous with the rear line of the subject parcel.
The action was begun in October 1958 as an action to foreclose a vendee's lien. Thereafter, in August 1959, a supplemental complaint was served pursuant to leave. The supplemental complaint added a second cause of action, for specific performance, and joined defendants Goldman who, with knowledge of the existence of plaintiff's action to foreclose a lien, had on January 21, 1959, contracted to purchase the subject parcel. Defendants Goldman answered and cross-claimed for specific performance of their contract. The cross-claim is not opposed by the Vasas.
The subject parcel is vacant land. The Cathay Road parcel is improved by a residence, the rear of which is slightly less than 13 feet from the rear line of the two parcels. The Zoning Ordinance of the Village of East Rockaway (Article 4, section 4) requires a 25-foot rear yard. Aware that a zoning problem would arise upon the division of the land into two parcels, plaintiff sought a provision in its contract warranting with respect to the subject parcel that a building permit would be granted. A clause in that form was refused, but the contract as signed incorporated the following provision:
'Said premises are sold and are to be conveyed subject to:
'1. Zoning regulations and ordinances of the city, town or village in which the premises lie which are not violated by existing structures, except as hereinafter provided.
* * *
* * *
Acting pursuant to the authorization contained in that paragraph, plaintiff made application on August 15, 1958, for a building permit for the subject parcel. On August 21, 1958, the application was denied, the reason given being stated as 'Article 8, section 12 of the Zoning Ordinance.' It has been stipulated that thereafter a letter dated August 29, 1958, was received by plaintiff's attorney from the Village, signed by the Village Attorney, confirming the refusal to issue a building permit. On October 1, 1958, the date set for the closing, plaintiff, by one of its officers, appeared at the closing and, referring to the denial of a building permit for the subject parcel because it was not a proper building plot under the zoning regulations demanded 'proof positive that this is a proper building plot as set forth in the contract.'
Defendants Vasa tendered a deed proper in form, but refused to recognize the violation, taking the position that the Village authorities were in error in applying Article 8, section 12 of the Ordinance and that the error could be corrected by plaintiff's bringing an Article 78 proceeding. Plaintiff's officer requested an adjournment in order to obtain proof concerning its application to the Village; this was refused unless he signed a document stating that the adjournment was at plaintiff's request. Plaintiff's officer then refused the proffered deed and the closing meeting broke up without adjournment. On October 16, 1958, plaintiff received a further letter from the Village, signed by the Building Inspector, reiterating the refusal to grant a permit. Shortly thereafter the action to impress a vendee's lien was begun.
While zoning ordinances do not normally constitute an objection to title, the specific provision incorporated in the instant contract creates an exception to that rule. The provision warrants and represents 'that this is a proper building plot on which a one family residence can be erected and maintained,' (emphasis...
To continue reading
Request your trial
-
North Triphammer Development v. Ithaca Associates
...exclusive remedy of return of money and reimbursement for survey and title examination costs was enforced); Artstrong Homes, Inc. v. Vasa, 23 Misc.2d 608, 201 N.Y.S.2d 138 (Sup.Ct. Nassau Co.1960) (plaintiff was not entitled to specific performance where contract contained an escape However......
-
Brotman v. Roelofs, Docket No. 25793
...v. Isherwood, 219 Md. 455, 150 A.2d 243 (1959); Epstein Hebrew Academy v. Wondell, 327 S.W.2d 926 (Mo.1959); Armstrong Homes, Inc. v. Vasa, 23 Misc.2d 608, 201 N.Y.S.2d 138 (1960). Unlike these cases, there was no language in the instant contract which specifically provided that, upon failu......
-
Voorheesville Rod and Gun Club, Inc. v. E.W. Tompkins Co., Inc.
...return any moneys paid on account" (Pamerqua Realty Corp., 93 A.D.2d 249, 251, 461 N.Y.S.2d 393, supra; see, Artstrong Homes v. Vasa, 23 Misc.2d 608, 201 N.Y.S.2d 138 [Meyer, J.]; 3 Warren's Weed, op. cit., Marketability of Title, § 8.07; 1 Rasch, op. cit., § 22.61). Contrary to plaintiff's......
-
Shepard v. Spring Hollow at Sagaponack
...and reimbursement for survey and title examination costs (see Scerbo v. Robinson, 63 A.D.2d 1096, 406 N.Y.S.2d 370; Artstrong Homes v. Vasa, 23 Misc.2d 608, 201 N.Y.S.2d 138). Accordingly, the judgment appealed from should be Judgment of the Supreme Court, Suffolk County, entered July 15, 1......