McKenna v. Case

• Decision Date: 26 September 1986
• Citation: McKenna v. Case, 507 N.Y.S.2d 777, 123 A.D.2d 517 (N.Y. App. Div. 1986)
• Parties: Tim McKENNA, Appellant, v. Burrall T. CASE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 777

507 N.Y.S.2d 777

123 A.D.2d 517

Tim McKENNA, Appellant, v. Burrall T. CASE, Respondent.

Supreme Court, Appellate Division Fourth Department.

Sept. 26, 1986.

David A. White, Rochester by David White, for appellant.

Gregory L. Rheude, Jr., Canandaigua by Gregory Rheude, Jr., for respondent.

Before DOERR, J.P., and DENMAN, GREEN, PINE and LAWTON, JJ.

MEMORANDUM:

Special Term erred in denying plaintiff's motion for summary judgment for specific performance of a real estate contract. The parties entered into a contract whereby defendant agreed to sell certain real property to plaintiff "subject to seller's attorney's approval within 5 days of acceptance." Seller's attorney subsequently disapproved the contract. Such disapproval would terminate plaintiff's rights under the contract (Norgate Homes v. Central State Bank, 82 A.D.2d 849, 850, 440 N.Y.S.2d 51; Youla v. Rappaport, Sup., 115 N.Y.S.2d 408, 409; Wagner v. Zonghetti Constr. Corp., Sup., 115 N.Y.S.2d 410, 413), unless said disapproval is occasioned by bad faith (Van Iderstine Co., Inc. v. Barnet Leather Co., Inc., 242 N.Y. 425, 434, 152 N.E. 250). While the issue of "bad faith" usually raises a question of fact precluding summary judgment, the uncontradicted proof demonstrates conclusively that defendant acted in bad faith by instructing his attorney to disapprove the contract. Defendant, by interfering and preventing his attorney from...