Roga v. Westin

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BRACKEN
• Citation: Roga v. Westin, 622 N.Y.S.2d 777, 212 A.D.2d 685 (N.Y. App. Div. 1995)
• Decision Date: 21 February 1995
• Parties: Ariel ROGA, Appellant, v. Monica WESTIN, Respondent, et al., Defendant.

Page 777

622 N.Y.S.2d 777

212 A.D.2d 685

Ariel ROGA, Appellant, v. Monica WESTIN, Respondent, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Feb. 21, 1995.

Neil A. Miller, Mineola, for appellant.

Fletcher, Sibell, Migatz & Burns, P.C., Manhasset (Bruce W. Migatz, of counsel), for respondent.

Before BRACKEN, J.P., and BALLETTA, COPERTINO and HART, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover a down payment on a contract for the sale of real property, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Alpert, J.), dated October 6, 1993, which, inter alia, granted the motion of the defendant Monica Westin for summary judgment dismissing the complaint.

ORDERED that the order and judgment is affirmed, with costs.

We agree with the Supreme Court that none of the grounds presented by the plaintiff excused him from performance under the contract. The plaintiff failed to present evidence to support a finding that a valid and subsisting certificate of occupancy was not in effect for the premises. The plaintiff's own actions in seeking to have the certificate revoked support this conclusion.

Pursuant to paragraph 10(a) of the contract, the defendant was obligated to "comply with all notes or notices of violations of law or municipal ordinances, orders or requirements noted or issued as of the date hereof", and convey the premises "free of them at Closing". By its plain language, this provision clearly refers only to "notes or notices of violations" issued as of the date of the contract (see, Hattman v. 212-214 South Ninth Street Corp., 147 N.Y.S.2d 552; Kaloumenos v. Bottaccio, 67 N.Y.S.2d 527, aff'd 273 App.Div. 907, 77 N.Y.S.2d 286; see also, Friedman Contracts and Conveyances of Real Property, § 3.6 [5th ed].

The contract provision requiring the premises to be...