Merritt Hill Vineyards Inc. v. Windy Heights Vineyard, Inc.

• Decision Date: 21 February 1984
• Citation: 460 N.E.2d 1077,472 N.Y.S.2d 592,61 N.Y.2d 106
• Parties: , 460 N.E.2d 1077 MERRITT HILL VINEYARDS INCORPORATED, Respondent-Appellant, v. WINDY HEIGHTS VINEYARD, INC., et al., Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 592

472 N.Y.S.2d 592

61 N.Y.2d 106, 460 N.E.2d 1077

MERRITT HILL VINEYARDS INCORPORATED, Respondent-Appellant, v. WINDY HEIGHTS VINEYARD, INC., et al., Appellants-Respondents.

Court of Appeals of New York.

Feb. 21, 1984.

[460 N.E.2d 1079] Daniel R. Taylor, Penn Yan, for appellants-respondents

John R. Kennedy, Penn Yan, for respondent-appellant.

OPINION OF THE COURT

KAYE, Judge.

In a contract for the sale of a controlling stock interest in a vineyard, the seller's undertaking to produce a title insurance policy and mortgage confirmation at closing constituted a condition and not a promise, the breach of which excused the buyer's performance and entitled it to the return of its deposit, but not to consequential damages. On the buyer's motion for summary judgment seeking recovery of both the deposit and consequential damages, the Appellate Division 94 A.D.2d 947, 463 N.Y.S.2d 960, correctly awarded summary judgment to the buyer for its deposit and to the seller dismissing the cause of action for consequential damages, even though the seller had not sought this relief by cross appeal.

In September, 1981, plaintiff, Merritt Hill Vineyards, entered into a written agreement with defendants, Windy Heights Vineyard and its sole shareholder Leon Taylor, to purchase a majority stock interest in respondents' Yates County vineyard, and tendered a $15,000 deposit. The agreement provides that "[i]f the sale contemplated hereby does not close, Taylor shall retain the deposit as liquidated damages unless Taylor or Windy Heights failed to satisfy the conditions specified in Section 3 thereof." Section 3, in turn, lists several "conditions precedent" to which the obligation of purchaser to pay the purchase price and to complete the purchase is subject. Among the conditions are that, by the time of the closing, Windy Heights shall have obtained a title insurance policy in a form satisfactory to Merritt Hill, and Windy Heights and Merritt Hill shall have received confirmation from the Farmers Home Administration that certain mortgages on the vineyard are in effect and that the proposed sale does not constitute a default.

In April, 1982, at the closing, plaintiff discovered that neither the policy nor the confirmation had been issued. Plaintiff thereupon refused to close and demanded return of its deposit. When defendants did not return the deposit, plaintiff instituted this action, asserting two causes of action, one for return of the deposit, and one for approximately $26,000 in consequential damages allegedly suffered as a result of defendants' failure to perform.

Special Term denied plaintiff's motion for summary judgment on both causes of action. The Appellate Division unanimously reversed Special Term's order, granted plaintiff's motion for summary judgment as to the cause of action for return of the deposit, and upon searching the record pursuant to CPLR 3212 (subd. [b] ), granted summary judgment in favor of defendants, dismissing plaintiff's second cause of action for consequential damages. Both plaintiff and defendants appealed from that decision. This appeal raises two issues: first, whether as a matter of procedure, the Appellate Division could grant defendants summary judgment in the absence of a cross appeal, and second, if so, whether the Appellate Division, on the merits, correctly determined that the failure to supply the title insurance policy and mortgage confirmation obligated defendants to return plaintiff's deposit but did not subject them to liability for consequential damages. Because the Appellate Division was correct both as to procedure and as to substance, we affirm.

I

As matter of procedure, the Appellate Division had the authority to grant summary judgment to defendants even in the absence of a cross appeal by them.

On plaintiff's appeal from the denial of its motion for summary judgment, the Appellate Division was required to review the record to determine if any issues of fact existed as to either of plaintiff's causes of action which required a trial. After searching the record, the Appellate Division determined that no issue of triable fact existed as to either cause of action, that plaintiff was entitled to judgment as a matter of law on the first, but that defendants were entitled to judgment as a matter of law on the second. CPLR 3212 (subd. [b] ), provides that "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion." Pursuant to that rule, the Appellate Division properly entered summary judgment in favor of defendants and dismissed plaintiff's second cause of action.

The question that next arises, however, is whether the Appellate Division could grant such relief in the absence of a cross appeal by defendants. While it is clear that this court could not grant summary judgment to a nonappealing party (Manes & Co. v. Greenwood Mills, 53 N.Y.2d 759, 761, 439 N.Y.S.2d 348, 421 N.E.2d 840; Kelly's Rental v. City of New York, 44 N.Y.2d 700, 702, 405 N.Y.S.2d 443, 376 N.E.2d 915; New York Cent. R.R. Co. v. Beacon Milling Co., 293 N.Y. 218, 222, 56 N.E.2d 558), the Appellate Division is not so precluded. (Compare People v. Consolidated Edison Co., 34 N.Y.2d 646, 648, 355 N.Y.S.2d 379, 311 N.E.2d 511, with City of Rye v. Public Serv. Mut. Ins. Co., 34 N.Y.2d 470, 474, 358 N.Y.S.2d 391, 315 N.E.2d 458.) This court has consistently upheld the Appellate Division's authority to grant such relief pursuant to CPLR 3212 (subd. [b] ), even in the absence of an appeal by the nonmoving party. (Taterka v. Nationwide Mut. Ins. Co., 91 A.D.2d 568, 569, 457 N.Y.S.2d 53, affd. 59 N.Y.2d 743, 463 N.Y.S.2d 441, 450 N.E.2d 247; Wehringer v. Helmsley-Spear, Inc., 91 A.D.2d 585, 457 N.Y.S.2d 78, affd. 59 N.Y.2d 688, 463 N.Y.S.2d 417, 450 N.E.2d 223; Freidus v. Todem Homes, 80 A.D.2d 575, 577, 435 N.Y.S.2d 786, affd. 56 N.Y.2d 526, 449 N.Y.S.2d 963, 434 N.E.2d 1341; Howell v. Davis, 58 A.D.2d 852, 853, 396 N.Y.S.2d 866, affd. 43 N.Y.2d 874, 403 N.Y.S.2d 496, 374 N.E.2d 393; Peoples Sav. Bank v. County Dollar Corp., 43 A.D.2d 327, 334, 351 N.Y.S.2d 157, affd. 35 N.Y.2d 836, 362 N.Y.S.2d 864, 321 N.E.2d 784.)

Our recent decision in Hecht v. City of New York, 60 N.Y.2d 57, 467 N.Y.S.2d 187, 454 N.E.2d 527 does not require otherwise. In reviewing a judgment entered on a jury verdict against multiple parties, we held in Hecht that in the absence of express statutory authority the Appellate Division could not award affirmative relief to one of the multiple defendants who did not appeal. Here, the basis for the Appellate Division's authority is CPLR 3212 (subd. [b] ).

Unlike this court, which has no original jurisdiction over motions and limited authority to review facts, the Appellate Division is a division of the Supreme Court (see N.Y. Const., art. VI, §§ 4, 7) and shares that court's power to search the record and award summary judgment to a nonmoving party even where, as here, the nonmovant did not appeal. As was aptly explained in language adopted by this court in De Rosa v. Slattery Contr. Co., 14 A.D.2d 278, 280-281, 220 N.Y.S.2d 871, affd. 12 N.Y.2d 735, 234 N.Y.S.2d 217, 186 N.E.2d 415:

"Rule 113 of the Rules of Civil Practice [the predecessor of CPLR 3212] provides judgment may be awarded to the opposing party even in the absence of a cross motion. Defendant Slattery did not ask for summary judgment either at Special Term or on appeal. It may be entitled to that relief, however, if it has a good defense to the action. The material facts are undisputed and mandate summary judgment dismissing the complaint * * *

"The Appellate Division, as the successor of the General Term, possesses all of the original jurisdiction of the Supreme Court, including the hearing and determination of motions * * * On an appeal from an intermediate order resulting in a reversal or modification, the Appellate Division generally entertains jurisdiction of and decides the underlying motion * * * The Court of Appeals, unlike the Appellate Division, has no original jurisdiction of a motion in an action or proceeding, and in the absence of an appeal therefrom it has held that it is without power to decide it." (Citations omitted.)

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