Central New York Realty Corp. v. Abel

• Decision Date: 29 June 1967
• Parties: CENTRAL NEW YORK REALTY CORP., Respondent, v. Paul ABEL and Pauline Abel, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 115

281 N.Y.S.2d 115

28 A.D.2d 50

CENTRAL NEW YORK REALTY CORP., Respondent, v. Paul ABEL and Pauline Abel, Appellants.

Supreme Court, Appellate Division, Fourth Department.

June 29, 1967.

Driscoll, Mathews, Gingold & Cass, Syracuse, for appellants; Alderman & Alderman, Syracuse, Bernard Samuels, Syracuse, of counsel.

Hancock, Ryan, Shove & Hust, Syracuse, for respondent; Stewart F. Hancock, Jr., Syracuse, of counsel.

Before BASTOW, J.P., GOLDMAN, HENRY, DEL VECCHIO and MARSH, JJ.

OPINION

PER CURIAM.

Defendants appeal from a judgment directing specific performance of an option agreement and execution and delivery of a warranty deed to premises located in the Town of Cicero, County of Onondaga.

Beginning in 1961 plaintiff began acquiring options on properties which were part of a 200 acre site north of Syracuse for the purpose of developing a shopping center. In February and March 1962 plaintiff's representatives attempted to obtain an option on defendants' premises, which comprised about 61 acres of the desired site, but without success. On March 2nd they were advised by defendants' attorney, Gingold, that a deal had been made by defendants with others. In fact, on that date Gingold, with the authority of defendants, had granted a six month option to purchase to a Rochester corporation, Westbrook Acres, Inc. Subsequent thereto, on August 14, 1962, defendant Paul Abel himself gave Westbrook an eight month option to lease, which was succeeded by a new six month option to purchase executed on March 5, 1963 for a consideration of three thousand dollars. This option extended to August 31, 1963 and contained a provision for a six month renewal for an additional three thousand dollars to expire February 28, 1964. It also was made assignable by the optionee and on May 13, 1963 the option was assigned to plaintiff by Westbrook. Notice of the assignment was given by plaintiff directly to defendants on July 25, 1963, together with a check for three thousand dollars for an extension of the option to February 28, 1964. Plaintiff did this by dealing directly with Mr. Abel without consulting Gingold.

Nothing further happened until February 13, 1964 when Dwyer, the attorney for plaintiff, was advised that a surveyor was seeking to obtain the abstract of title to defendants' property, which was then in the office of a realty firm closely connected with plaintiff, for the purpose of doing a survey on other lands also covered by the abstract. When plaintiff's attorney was unable to reach defendant Paul Abel to determine whether it would be proper to release the abstract, on the following day he contacted attorney Gingold, who had acted for defendants at the time of the original option discussions between plaintiff and defendants in 1962. According to testimony given by Dwyer, he first asked whether it was all right to let the surveyor have the abstract and was told by Gingold that it was. He then advised Gingold that plaintiff would have to either exercise the assigned option to purchase, which would expire at the end of the month, or get an extension of the option, and stated that he had been instructed to find out whether an extension could be secured. Gingold replied: 'I don't know, I do not have any authority to give you an extension.' Dwyer said that if an extension could not be negotiated plaintiff would want to exercise the option. Gingold commented that he had not been in touch with defendant Mr. Abel recently. Dwyer then acknowledged that he did not expect Gingold had authority to grant an extension but that he knew Gingold had represented Abel at the time the assigned option had been granted to Westbrook and that since there would be a question of consideration involved--Dwyer indicating that, unlike payments made for prior options or extensions, plaintiff would like any future extension price to be applied on the purchase--he thought it would be improper to negotiate with Abel in the absence of Gingold. Gingold however suggested that Dwyer talk to Abel about the negotiation. Dwyer replied that he would prefer to have Gingold talk with Abel and report back to Dwyer whether or not an extension could be negotiated. According to Dwyer, he then reminded Gingold that the option expired at the end of the month and a decision would have to be made whether to exercise it or whether an extension would have to be obtained, whereupon Gingold said, 'Don't worry, I will report back to you.' He also testified that he had no further conversations with Gingold until the evening of March 3, 1964 when he was informed that Gingold had never been able to discuss with Abel their conversation of February 14th because Abel had been absent from the city.

Gingold's testimony confirmed the fact that he and Dwyer had a conversation on February 14, 1964 and that he had said that as far as he knew it was all right to deliver the abstract to the surveyor. As to the balance of the conversation, his testimony varied in some detail in that he testified he told Dwyer he did not know whether defendants would give an extension of the option and that Dwyer would have to take it up directly with Mr. Abel because Gingold didn't know whether he still represented Abel in view of the fact that he hadn't seen him since the previous summer; that he said he would see if he could set up an appointment so Dwyer could approach Abel about an extension and would call Abel; that he never agreed that he would call back Dwyer; that Dwyer talked merely about obtaining an extension and never indicated an intention to exercise the option; that Dwyer at no time told him he was relying upon Gingold to contact Abel and to secure an extension. Gingold testified that he tried...