South Shore Skate Club, Inc. v. Fatscher

• Decision Date: 15 October 1962
• Parties: SOUTH SHORE SKATE CLUB, INC., Respondent, v. Marilyn FATSCHER, a/k/a Marilyn Cain, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 372

233 N.Y.S.2d 372

17 A.D.2d 840

SOUTH SHORE SKATE CLUB, INC., Respondent, v. Marilyn FATSCHER, a/k/a Marilyn Cain, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 15, 1962.

Anthony N. DelRosso, Mineola, for appellant.

David Kallman, New York City, for respondent.

Before UGHETTA, Acting P. J., and BRENNAN, HILL, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action by a vendee for specific performance of a contract for the sale of real property, the defendant vendor appeals from an order of the Supreme Court, Nassau County, dated January 8, 1962, which granted plaintiff's motion for summary judgment, pursuant to rule 113 of the Rules of Civil Practice.

Order affirmed, with ten dollars costs and disbursements.

The contract of sale was conditioned upon the receipt by plaintiff of a zoning variance to permit the use of the premises as a skating rink. Thereafter, in order to enable plaintiff to make a second application for a variance, the date for closing was extended by mutual consent. Plaintiff did make such second application, but it subsequently entered into a contract for the sale of the property to a third party and withdrew the second application.

In opposition to the motion for summary judgment, defendant contended in substance: (1) that, because the zoning variance had not been obtained, the contract was terminated in accordance with its provisions; and (2) that, since plaintiff had not disclosed to defendant its pending negotiations with the third party and had represented that the extension was necessary to permit the filing of the second application, plaintiff was guilty of fraud in procuring such extension.

In our opinion, defendant failed to show the existence of any triable issue of fact and summary judgment was properly granted. The provisions respecting the zoning change had been inserted in the contract for plaintiff's benefit. Accordingly, plaintiff could waive the condition and require performance of the contract (DiLeonardo v. Paoline, Sup., 161 N.Y.S.2d 660; cf. Catholic Foreign Mission Society of America v. Oussani, 215 N.Y. 1, 8, 109 N.E. 80, 82; Spuches v. Royal View, Inc., 13 A.D.2d 815, 216 N.Y.S.2d 468; Sun Assets Corp. v. English Evangelical Lutheran Church of the Ascention of Borough Park, 19 Misc.2d 187, 193, 185 N.Y.S.2d 695, 701).

Nor, in our opinion, was any fraud shown with respect to the extension of time for the closing of title. The second application for a zoning change was actually filed; and plaintiff was under no duty to defendant to disclose its negotiations with the third party. Under such circumstances, fraud may not be predicated...