Tetz v. Schlaier

• Decision Date: 13 August 1990
• Citation: 559 N.Y.S.2d 560,164 A.D.2d 884
• Parties: Edward TETZ, Jr., Respondent, v. Frances M. SCHLAIER, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 560

559 N.Y.S.2d 560

164 A.D.2d 884

Edward TETZ, Jr., Respondent, v. Frances M. SCHLAIER, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Aug. 13, 1990.

Thomas Cartelli, New York City, for appellant Frances M. Schlaier.

O'Hara & Augello, Middletown (Robert P. Augello, of counsel), for appellant Gustav Schlaier.

Burt J. Blustein, Middletown, for respondent.

Before THOMPSON, J.P., and EIBER, ROSENBLATT and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to compel the specific performance of a contract for the sale of real property, the defendants separately appeal from an order of the Supreme Court, Orange County (Ingrassia, J.), dated February 2, 1989, which granted the plaintiff's motion for summary judgment in his favor granting specific performance and denied the defendants' cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with one bill of costs.

The contract of sale, drafted by the defendant Frances Schlaier, a professional real estate broker, on behalf of herself and Gustav Schlaier (hereinafter the sellers) was a three-page document containing 24 paragraphs, and provided for a purchase price of $225,000, consisting of a $1,000 deposit, and an additional $49,000 in cash to be paid at the closing, with the $175,000 balance to be paid over a period of seven years at 12% interest. Paragraph 23 of the contract states "release clause to be agreed upon by attorneys of buyer and sellers". The sellers maintain that the contract does not satisfy the Statute of Frauds, since the negotiations conducted pursuant to paragraph 23 may affect the mortgage payment structure. We disagree.

The instrument satisfies the Statute of Frauds. It designates the parties, identifies and describes the subject matter and states all the essential and material terms of the agreement (see, Rodman v. Aivagedis, 123 A.D.2d 429, 506 N.Y.S.2d 733; Read v. Henzel, 67 A.D.2d 186, 415 N.Y.S.2d 520). The determination of whether an instrument satisfies the Statute of Frauds is based solely on the language in the document itself, without consideration of parol evidence (see, Bazak Intl. Corp. v. Mast Indus., 73 N.Y.2d 113, 118, 538 N.Y.S.2d 503, 535 N.E.2d 633; Jill Real Estate v. Smyles, 150 A.D.2d 640, 641, 541 N.Y.S.2d 515). While it is true that issues related to a mortgage are often deemed material (see, Willmott v. Giarraputo, 5 N.Y.2d 250, 184 N.Y.S.2d 97, 157 N.E.2d 282), the sparse provisions of paragraph 23 cannot serve to render the agreement unenforceable, since the agreement sets forth a cognizable formula by which the purchase price can be readily ascertained (see, Jill Real Estate v. Smyles, supra; Dahm v. Miele, 136 A.D.2d 586, 523 N.Y.S.2d 851). Inasmuch as matters to be...