Ladd v. Coldwell Banker

• Decision Date: 15 November 1990
• Citation: 563 N.Y.S.2d 255,167 A.D.2d 676
• Court: New York Supreme Court — Appellate Division
• Parties: George E. LADD et al., Respondents, v. COLDWELL BANKER, Charles J. Racette & Associates et al., Appellants. (And Another Related Action.)

Page 255

563 N.Y.S.2d 255

167 A.D.2d 676

George E. LADD et al., Respondents, v. COLDWELL BANKER, Charles J. Racette & Associates et al., Appellants (And Another Related Action.)

Supreme Court, Appellate Division,

Third Department.

Nov. 15, 1990.

Bell, Niles & Peck (Dana Peck, of counsel), Plattsburgh, for appellant Coldwell Banker.

Lois M. McShane, Plattsburgh, for respondents.

Before KANE, J.P., and WEISS, MIKOLL, YESAWICH and MERCURE, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court (Viscardi, J.), entered June 27, 1989 in Clinton County, which, inter alia, partially granted plaintiffs' motion for summary judgment.

By agreement dated February 19, 1986, plaintiffs gave defendant Coldwell Banker: Charles J. Racette & Associates, a real estate broker, the exclusive right to sell their real property in the Town of Plattsburgh, Clinton County, for the listing price of $59,900. Plaintiffs agreed to pay a 10% commission if a sale was made or a purchaser found therefor. On April 16, 1986, plaintiffs entered into a written contract to sell the property to defendant Martin Mannix for $59,900, payable $10,000 in cash and the balance by a purchase money mortgage, with payments amortized over 10 years with interest at 10% and the principal balance due at the end of five years, to "be accompanied by the usual bond * * * and both shall contain the clauses usually contained in the forms of bonds * * * and mortgages used by lending institutions in Clinton County". The proposed closing did not take place as a result of a disagreement which arose in July 1986 as to whether the mortgage was to permit prepayment of the principal without penalty.

Plaintiffs commenced this action against Coldwell Banker and Mannix, alleging that Coldwell Banker ignored plaintiffs' wishes in procuring Mannix as a purchaser, failed to consider higher offers from other prospective purchasers, was overbearing, coercive and "bullied" plaintiffs into signing the contract with Mannix, and that Mannix breached the contract of sale. The complaint sought money damages and a declaration that the contract with Mannix was null and void. Coldwell Banker asserted a counterclaim for a real estate commission of $5,990, alleging that it had fulfilled its obligation by procuring a purchaser who entered into a contract of sale. Subsequently, plaintiffs moved and Coldwell Banker cross-moved for summary judgment. Supreme Court, concluding that there could be no meeting of the minds of the parties to the real estate contract absent a clause providing whether the mortgage principal could be prepaid without penalty, granted plaintiffs' motion to the extent of declaring the contract to be unenforceable and denied Coldwell Banker's cross motion. Coldwell Banker appeals.

There must be a reversal. Plaintiffs supported their motion for summary judgment with nothing more than an affirmation of their attorney, an individual with no apparent personal knowledge of the facts stated (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718), and selected pages of deposition testimony which are silent on the question of whether, at any time up to the formation of the contract, either party discussed or even considered whether the mortgage should contain a prepayment clause. Clearly, Mannix's later insistence that the mortgage...