Smith v. Putnam

• Decision Date: 22 December 1988
• Citation: 535 N.Y.S.2d 725,145 A.D.2d 383
• Parties: Rupert J. SMITH et al., Plaintiffs-Respondents, v. Frederic P. PUTNAM, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 725

535 N.Y.S.2d 725

145 A.D.2d 383

Rupert J. SMITH et al., Plaintiffs-Respondents, v. Frederic P. PUTNAM, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 22, 1988.

B.R. Tirana, Washington, D.C., for plaintiffs-respondents.

D.H. Gikow, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and SULLIVAN, MILONAS and ELLERIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (C. Beauchamp Ciparick, J.), entered August 17, 1988, which, inter alia, granted plaintiffs' motion for summary judgment as to liability and directed an assessment of damages, denied defendant's cross-motion to dismiss the complaint pursuant to CPLR 3211(a)[5] and denied defendant's later motion for renewal and leave to serve an amended answer, unanimously modified, on the law, to deny plaintiffs' motion for summary judgment, vacate the direction for an assessment of damages, grant the cross-motion to dismiss the complaint and, except as thus modified, affirmed, without costs or disbursements.

Having already prevailed in a prior action in which defendant, the buyer, sought rescission of a May 27, 1986 contract of sale of a hundred year-old six-story loft building located at 177-179 Duane Street in Manhattan for $1,625,000 and the return of his $100,000 down payment, plaintiffs now seek additional damages from defendant as a result of his failure to close title. After obtaining two adjournments of the closing, for which he paid a premium of $5,500 each adjournment, defendant sought a third adjournment but never paid the required $9,500 or the additional $70,000 down payment. Instead, according to plaintiffs, he advised them four days later that he could not go through with the purchase because of the high costs of renovation. When plaintiffs responded by demanding payment of the $9,500 and $70,000, respectively, defendant failed to reply in writing but, according to plaintiffs, orally advised them that he had made a mistake in that the project was too costly and, having been unable to find anyone to whom he could "flip" his purchase obligations, he would rather cut his losses and withdraw. Plaintiffs' attorney then advised defendant that the closing would be held on September 30, 1986, the date up to which defendant had paid the appropriate adjournment charges and requested that he attend. Defendant did appear, but, without explanation, failed to perform. That same day, plaintiffs' attorney wrote to defendant, advising him that unless he appeared on October 10, 1986, prepared to close, the contract would be deemed breached by reason of default and that all his rights thereunder, including any payments made on account, would be lost. As to the October 10th date, time was made of the essence. Plaintiffs appeared on that date with a signed deed. Defendant failed to appear. On October 14, 1986, plaintiffs' attorney wrote to defendant advising him that as a result of his default the down payment, which had been held in escrow, had been delivered to plaintiffs and that the premises were being placed back on the market. Defendant was offered the opportunity to close in accordance with the terms of the contract at any time prior to plaintiffs'...