Cave v. Kollar

• Decision Date: 01 December 2003
• Docket Number: 2003-00163.
• Citation: Cave v. Kollar, 2 AD3d 386, 767 N.Y.S.2d 856, 2003 NY Slip Op 19197 (N.Y. App. Div. 2003)
• Court: New York Supreme Court — Appellate Division
• Parties: GAIL E. CAVE, Respondent, v. RICHARD KOLLAR et al., Appellants.

2 A.D.3d 386

767 N.Y.S.2d 856

2003 NY Slip Op 19197

GAIL E. CAVE, Respondent, v.RICHARD KOLLAR et al., Appellants.

2003-00163.

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 1, 2003.

In an action for specific performance of a contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Westchester County (Barone, J.), entered December 2, 2002, which granted the plaintiff's motion for summary judgment, denied their cross motion for summary judgment, and granted the plaintiff specific performance of the contract at a purchase price of $270,000.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the defendants' answer is deemed amended to include a counterclaim for specific performance, and the cross motion is granted to the extent that the defendants may compel specific performance of the contract at a purchase price of $325,000.

The facts concerning the real estate contract underlying this appeal are set forth in a prior appeal (seeCave v Kollar,296 AD2d 370[2002]).In the prior appeal, we determined that the demand by the plaintiff purchaser in May 2001 that the defendants sellers fix a closing date was inadequate to make time of the essence.Having failed to make a sufficient demand for performance before commencement of the action, the plaintiff was not entitled to specific performance of the contract.Following determination of that appeal, the defendants and the plaintiff issued notices fixing different closing dates and declaring time to be of the essence.The issue on this appeal concerns the proper purchase price under the terms of the contract.

A contract should be read as a whole to determine its purpose and intent (seeW.W.W. Assoc. v Giancontieri,77 NY2d 157, 162[1990])."[I]n searching for the probable intent of the parties, lest form swallow substance, our goal must be to accord the words of the contract their `fair and reasonable meaning'"(Sutton v East Riv. Sav. Bank,55 NY2d 550, 555[1982], quotingHeller v Pope,250 NY 132, 135[1928]).

The plaintiff agreed to purchase a vacant lot and an adjoining lot improved with a two-family residence.Reading the contract as a whole, it is clear that the parties intended that the purchase price would be $325,000 if the necessary variances were obtained so that a residence could be legally constructed on the vacant lot.At the time the parties demanded performance of the contract and...