Berger v. Polizzotto
| Decision Date | 27 March 1989 |
| Citation | 148 A.D.2d 651,539 N.Y.S.2d 401 |
| Parties | Howard BERGER, et al., Respondents, v. Alfred POLIZZOTTO, et al., Appellants, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Dollinger, Gonski, Grossman, Permut & Hirschhorn, Carle Place (Matthew Dollinger, of counsel), for appellant Polizzotto.
Lee, File & Amtzis, Staten Island (Howard M. File, of counsel), for respondents.
Before BROWN, J.P., and LAWRENCE, EIBER and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, for specific performance of a contract for the sale of real property dated June 10, 1985, (1) the defendant Alfred Polizzotto, appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Richmond County (Kuffner, J.), entered July 2, 1987, as, after a nonjury trial, inter alia, awarded the plaintiffs specific performance of the contract and directed that the deed dated August 7, 1986, from Lynette Homes Ltd. to Polizzotto be canceled of record, and (2) the defendants Lynette Homes Ltd. and D. John Andino appeal from each and every part of the same judgment.
ORDERED that the matter is remitted to the Supreme Court, Richmond County for a determination of the plaintiffs' damages on their cause of action sounding in breach of contract against Lynette Homes Ltd.
The plaintiffs Jane and Howard Berger sued the defendants Lynette Homes, Ltd. (hereinafter Lynette), Lynette's president Richard Lipari, Alfred Polizzotto, and D. John Andino for specific performance of a contract of sale of certain premises at 121 Dahlia Avenue, Staten Island. On June 10, 1985, Lipari on behalf of Lynette, the builder and seller of the property, entered into a contract of sale for that property with the plaintiffs. However, on August 7, 1986, Lynette deeded that same property to the defendant Polizzotto. Polizzotto subsequently leased the property to the defendant Andino. Following a nonjury trial, the court granted specific performance of the contract of sale to the plaintiffs and cancelled the deed from Lynette to Polizzotto. We reverse.
To establish that he was a bona fide purchaser for value, Polizzotto had the burden of proving that he purchased the property for valuable consideration (see, 1 Warren's Weed, New York Real Property, §§ 103, 1.07) and that he did not purchase with "knowledge of facts that would lead a reasonably prudent purchaser to make inquiry" (Morrocoy Marina...
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