Lui v. Park Ridge at Terryville Ass'n, Inc.

• Decision Date: 16 August 1993
• Citation: 196 A.D.2d 579,601 N.Y.S.2d 496
• Parties: Kent G. LUI, et al., Respondents, v. PARK RIDGE AT TERRYVILLE ASSOCIATION, INC., et al., Appellants, et al., Defendant (and a Third-Party Title).
• Court: New York Supreme Court — Appellate Division

Page 496

601 N.Y.S.2d 496

196 A.D.2d 579

Kent G. LUI, et al., Respondents, v. PARK RIDGE AT TERRYVILLE ASSOCIATION, INC., et al Appellants, et al., Defendant (and a Third-Party Title).

Supreme Court, Appellate Division,

Second Department.

Aug. 16, 1993.

Arnold J. Hauptman, Massepequa, for appellants.

Palmeri & Gaven, New York City (John J. Palmeri and Joan A. Gallo, of counsel), for respondents.

Before BALLETTA, J.P., and EIBER, RITTER and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, the defendants Park Ridge at Terryville Association, Inc., and Park Ridge Organization appeal from so much of an order of the Supreme Court, Richmond County (Cusick, J.), entered December 6, 1990, as denied their motion for summary judgment dismissing the complaint insofar as it is asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the motion is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendant is severed.

The plaintiffs entered into a contract for the construction and purchase of a new home which was to be built by the defendants Park Ridge at Terryville Association, Inc., and Park Ridge Organization (hereinafter the defendant builders) and made a down payment of $25,200 toward the purchase price of the house. Approximately six months later, the plaintiffs notified the defendant builders that they had chosen to cancel the contract due to the fact that a "sewer hookup" would not be immediately available. Subsequently, the plaintiffs commenced the instant action to recover their down payment, claiming, in essence, that the contract was conditioned upon connection of the house to the county sewer system. After the joinder of issue, the plaintiffs and the defendant builders moved for summary judgment. Both motions were denied, and this appeal by the defendant builders followed.

It is well established that on a motion for summary judgment, the court's role is limited to one of issue-finding and not issue-determination (see, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068; Zarr v. Riccio, 180 A.D.2d 734, 580 N.Y.S.2d 73; Heller v. Trustees of the Town of E. Hampton, 166 A.D.2d 554, 560 N.Y.S.2d 836). Although the papers should be scrutinized carefully in the light most favorable to the opposing party (see, Robinson v. Strong Mem. Hosp., 98 A.D.2d 976, 470 N.Y.S.2d 239) and the court should not determine issues of credibility (see, Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776), "only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment" (see, Rotuba Extruders v. Ceppos, supra, 46 N.Y.2d at 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068).

Contrary to the determination of the Supreme Court, we find that the record fails to reveal the existence of any triable issues of fact with respect to the interpretation of the parties' contract of sale which would defeat the defendant builders' motion for summary judgment in their favor. It is settled that the responsibility to interpret a contract falls upon the court, "which must ascertain the intention of the parties from the language which they have employed" (see, Carvel Corp. v. Rait, 117 A.D.2d 485, 487, 503 N.Y.S.2d 406; see also, Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 291, 344 N.Y.S.2d 925, 298 N.E.2d 96). The "[i]nterpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument" (Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 56, 421 N.Y.S.2d 556, 396 N.E.2d 1029; see, Chimart Assoc. v. Paul, 66 N.Y.2d 570, 572-573, 498 N.Y.S.2d 344, 489 N.E.2d 231). Thus, where the parties have set forth their agreement in a clear and complete document, their written agreement should be enforced according to its terms (see, W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639). A court should not, under the guise of contract interpretation, "imply a term which the parties themselves failed to insert" or otherwise rewrite the contract (Mitchell v. Mitchell, 82 A.D.2d 849, 440 N.Y.S.2d 54; see, Ives v. Ives, 96 A.D.2d 643, 465 N.Y.S.2d 70; see also, Brands v. Urban, 182 A.D.2d 287, 587 N.Y.S.2d 698).

Here, paragraph (1)(a) of the contract of sale provided, in relevant part, that the purchasers agreed to accept the premises "subject to * * * (ii) building restrictions and regulations of all municipal authorities in effect at the date of closing * * * (iv) sewer, water, gas, drainage, electric, cable TV and telephone easements, if any * * * [and that] it is a condition hereof that none of the above will prohibit the erection, use and maintenance of the dwelling". The contract also provided, in relevant part, as follows:

"4. In the event that any municipal agency having jurisdiction over the premises imposes construction requirements different or in addition to those required at the date of this contract, Purchaser hereby authorizes Seller to comply with such requirements and Purchaser agrees to pay the additional reasonable charge, if any, for same at the time of closing.

* * * * * *

"19. (a) The parties shall apportion at closing, taxes, fuel oil, water and sewer charges (if any). The Purchaser shall make such escrow deposits for taxes, insurance premiums, etc. as required by the lending institution at closing.

* * * * * *

"29. If any minor item in the dwelling or if the environs thereof are not fully completed at closing, Purchaser shall nevertheless close title, provided that a Certificate of Occupancy is issued and Seller agrees in writing to complete such items and the environs (weather permitting) within 30 days after closing. Purchaser will do an inspection 'walk-through' of the premises with Seller's representative no sooner than 48 hours prior to closing of title. Premises will be delivered free of debris and broom swept".

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