Partrick v. Guarniere
| Decision Date | 31 May 1994 |
| Citation | 612 N.Y.S.2d 630,204 A.D.2d 702 |
| Parties | Donald G. PARTRICK, et al., Respondents, v. Dennis E. GUARNIERE, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Reisman, Peirez, Reisman & Calica, Garden City (Robert M. Calica, Neil A. Miller, and Susan T. Kluewer, of counsel), for appellant.
Bracken & Margolin, Islandia (Linda U. Margolin and John K. Diviney, of counsel), for respondents.
Before COPERTINO, J.P., and SANTUCCI, FRIEDMANN and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of contract, the defendant Dennis E. Guarniere appeals, (1) as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated June 26, 1992, as denied the branch of his motion which was for summary judgment dismissing the complaint and granted the branch of the plaintiffs' cross-motion which was for summary judgment and, (2) as limited by his brief, from so much of a judgment of the same court, dated September 8, 1992, as is in favor of the plaintiff and against the defendants in the principal sum of $125,000 with interest from October 1, 1991.
ORDERED that the respondents are awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1].
The appellant is the owner of a parcel of real property located in Islandia, New York. In 1989, he entered into a contract to sell the land to the plaintiffs. The sale was conditioned upon the plaintiffs being able to change the zoning for the property from residential to commercial. The contract provided, inter alia, that the plaintiffs would have a certain amount of time to effect the zoning change "unless such time is extended in writing by the Seller". The contract also provided that if the plaintiffs were unable "to obtain the change of zone * * * within the time as provided herein, then either party shall have the right to cancel * * * this contract".
The plaintiffs were unable to obtain the zoning change in the time provided by the contract. The parties entered into a written agreement in February 1990 extending until March 31, 1991, the plaintiffs' time to obtain the zoning change if the plaintiffs so elected and if they paid a certain sum for the additional time. However, as that date approached, the plaintiffs still had not obtained the zoning change from the Village of Islandia (hereinafter the Village). The plaintiffs then sought another extension from the appellant to obtain the zoning change. After some negotiation, the parties agreed, in writing, to an extension until September 30, 1991. The Village did not reach a decision on the plaintiffs' application by September 30, 1991, and the plaintiffs did not communicate any further requests to the appellant for additional time within which to obtain the zoning change. However, on September 23, 1991, the appellant's attorney wrote a letter to the plaintiffs' attorney in which the appellant unilaterally extended the plaintiffs' time to obtain the zoning change until December 16, 1991. The plaintiffs responded that they had not sought a further extension and that, instead, they wished to exercise their right to cancel the contract and obtain a refund of their down payment. The appellant refused and this action ensued.
An examination of the parties' contract reveals that the parties intended to afford each other the right to cancel the agreement if the zoning change could not be effected within the time allowed. The clear and...
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