Policastro v. Town of La Grange
| Decision Date | 13 May 1993 |
| Citation | 597 N.Y.S.2d 794,193 A.D.2d 950 |
| Parties | Jack POLICASTRO et al., Respondents, v. TOWN OF LA GRANGE et al., Defendants, and Dwyer/Berry Associates II et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Vergilis, Stenger & Lucia (Antonia T. Lucia, of counsel), Fishkill, for appellants.
Robert Ianelli, Fishkill, for respondents.
Before WEISS, P.J., and LEVINE, MERCURE, MAHONEY and CASEY, JJ.
Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Jiudice, J.), entered January 23, 1992 in Dutchess County, which denied a cross motion by defendants Dwyer/Berry Associates II, Dwyer Berry Construction Corporation and David Berry for summary judgment dismissing the complaint against them.
At issue on this appeal is whether Supreme Court erred in determining that a question of fact exists regarding the contractual obligation of the sellers of a vacant lot in a subdivision in the Town of La Grange, Dutchess County, to do the fill work required before the Town will issue a building permit to the purchaser. We conclude that defendants Dwyer/Berry Associates II, Dwyer Berry Construction Corporation and David Berry (hereinafter collectively referred to as defendants) failed to establish their entitlement to a judgment as a matter of law on the issue of the scope of their contractual obligation.
As developers of the seven-lot subdivision, defendants prepared a subdivision map which was filed in the Dutchess County Clerk's office. In order to obtain approval of the subdivision from defendant Town of La Grange, defendants agreed to construct a swale or drainage ditch through the property. The subdivision map specifically provided that prior to the issuance of any building permit all drainage swales illustrated on the map must be constructed and approved by the Town and "all grading and fill requirements illustrated on the plat shall be completed for that particular lot to the Town's satisfaction". Defendants constructed a swale which was approved by the Town. It is undisputed that for the swale to work properly each lot has to be filled and graded so as to provide drainage into the swale.
Dwyer/Berry Associates II, as the seller, entered into a contract for the sale of lot No. 1 in the subdivision with plaintiffs as the purchasers. The contract included a rider whereby the seller agreed to construct a swale "so as to allow for the proper construction of a single family dwelling upon the premises" and which provided that the property was conveyed subject to, inter alia, any notes or restrictions on the map "provided same do not prohibit the construction or occupancy of a single family dwelling upon the premises". The rider also provided, "Seller represents now and at the time of closing that all permits, approvals and other requirements of municipal authorities have been fully satisfied with reference to the premises and that same shall survive closing of title." Plaintiffs allege that prior to closing they contacted the Town to determine whether a building permit would be issued to them for the lot and a Town official assured them that there were no problems. After the closing, however, plaintiffs' application for a building permit was denied by the Town upon the ground that certain fill work had to be done before the permit would be issued.
Plaintiffs thereafter commenced this action against defendants, alleging breach of contract, negligence and fraud. Plaintiffs' complaint also asserts a cause of action against the Town and two of its officials, but they are not parties to this appeal. Defendants cross-moved for summary judgment dismissing the complaint against them. Addressing only the breach of contract cause of action, Supreme Court held that a question of fact had been raised. Defendants' cross motion was therefore denied, resulting in this appeal by defendants.
According to defendants, they agreed to construct a swale through the entire subdivision but the responsibility for grading and filling the individual lots to provide proper drainage into the swale fell to the purchasers of the lots. Defendants allege that such an apportionment of responsibility between the developer and the individual lot purchaser is consistent with industry practice because the grade and fill requirements are unique to each lot. Defendants also allege that other lot owners in the subdivision did the fill work necessary to obtain building permits and that plaintiffs knew or should have known that additional...
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