Lopez v. Highmount Associates
| Decision Date | 05 April 1984 |
| Parties | Leandro LOPEZ, Jr., et al., Appellants, v. HIGHMOUNT ASSOCIATES et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Robert A. MacKinnon, Kingston, for appellants.
Choate, Moore, Hahn & McGarry, New York City (Leonard H. Rubin, New York City, of counsel), for respondent Highmount Associates.
Jerome J. Monasch, New York City, for respondents Peter S. Goertzel and Karen Olga Goertzel.
Before KANE, J.P., and MAIN, CASEY, LEVINE and HARVEY, JJ.
Appeal from a judgment of the Supreme Court in favor of defendants, entered June 17, 1983 in Ulster County, upon a decision of the court at Trial Term, without a jury.
On October 1, 1971, plaintiff Leandro Lopez, Jr. and Salustiano Franco sold a 240-acre parcel of land in Ulster County to defendants Peter S. Goertzel and his wife, Karen. As consideration for this parcel, the Goertzels made a $55,000 cash payment and also delivered to plaintiffs Leandro Lopez and his wife, Aurora, a bond and purchase-money mortgage to secure a $30,000 indebtedness. The bond and mortgage called for the Goertzels to make payments of $269.65 per month, due on the first day of each month. Also, on October 1, 1971, Leandro Lopez and the Goertzels executed an ancillary agreement whereby Lopez would deed an additional five-acre parcel to the Goertzels in exchange for any five-acre plot contained in the original 240 acres. 1 The additional five acres to be conveyed to the Goertzels were of crucial importance since they provided the only access to a nearby road.
The mortgage and bond signed by the Goertzels contained the following covenant:
That the whole of said principal sum and interest shall become due at the option of the mortgagee: after default in the payment of any installment of principal or of interest for fifteen days * * *. An assessment which has been made payable in instalments at the application of the mortgagor or lessee of the premises shall nevertheless, for the purpose of this paragraph, be deemed due and payable in its entirety on the day the first instalment becomes due or payable or a lien.
Despite the language of this covenant, on several separate occasions between March and December, 1979, plaintiffs agreed to accept late payment of the mortgage installments. And, in February, 1980, Peter Goertzel again requested that he be allowed to tender late payment of the January and February, 1980 installments. According to both Goertzel and Leandro Lopez, plaintiffs agreed to accept the January and February, 1980 installments in March, 1980, to be paid in one check together with the March installment. Subsequently, by check dated March 11, 1980, the Goertzels paid those installments. However, Leandro Lopez testified that he did not attempt to cash that check immediately; rather, he initiated this lawsuit to foreclose the mortgage on March 19, 1980, claiming that the Goertzels had "failed to comply with the terms and conditions on said mortgage * * * by omitting to pay the installment of principal and interest due January 1, 1980, and each month thereafter to date".
In their complaint, plaintiffs listed as defendants the Goertzels, Highmount Associates (Highmount), Pine Hill Associates 2 and the New York State Tax Commission. Of these, only the Goertzels and Highmount filed answers. Highmount is a limited partnership, of which Peter Goertzel is a limited partner, to which the Goertzels had conveyed their interest in the 240-acre parcel. Both the Goertzels and Highmount asserted counterclaims in their answers, alleging that plaintiffs had willfully failed to carry out the exchange of property called for in the ancillary agreement, and that this failure had materially reduced the value of the adjoining 240 acres. The Goertzels demanded...
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Goldwasser v. Smith Corona Corp.
...52 A.D.2d 805, 383 N.Y.S.2d 339, 341 (1976) (cause of action accrues after a demand is refused). See also Lopez v. Highmount Associates, 101 A.D.2d 618, 474 N.Y.S.2d 875, 877 (1984) (enforcing contract to convey land upon demand); Rossi v. Oristian, 50 A.D.2d 44, 376 N.Y.S.2d 295, 298 (1975......
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Sutton v. Burdick
...v. Wellington, 48 N.Y.S.2d 159, 161-163 [1943], affd. 269 App.Div. 747, 55 N.Y.S.2d 116 [1945]; cf. Lopez v. Highmount Assoc., 101 A.D.2d 618, 619, 474 N.Y.S.2d 875 [1984]; Rossi v. Oristian, 50 A.D.2d 44, 46-47, 376 N.Y.S.2d 295 [1975] ). As the 1997 agreement specified no date by which pe......
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DiBartolo v. Battery Place Associates, 2008 NY Slip Op 30675(U) (N.Y. Sup. Ct. 3/10/2008)
...within six years from the date of DiBartolo's November 20, 2000 demand for performance of the contract. See, Lopez v. Highmount Associates, 101 A.D.2d 618, 619 (3rd Dep't 1984) which held that where, as here, no time for performance was fixed in the contract, "the six-year period did not be......
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