Whitman v. Larson

• Decision Date: 11 April 1991
• Citation: 568 N.Y.S.2d 485,172 A.D.2d 968
• Parties: Lillian G. WHITMAN, Appellant, v. Robert LARSON et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 485

568 N.Y.S.2d 485

172 A.D.2d 968

Lillian G. WHITMAN, Appellant, v. Robert LARSON et al., Respondents.

Supreme Court, Appellate Division Third Department.

April 11, 1991.

McPhillips, Fitzgerald & Meyer (William J. White, of counsel), Glens Falls, for appellant.

Little & O'Connor (Michael J. O'Connor, of counsel), Glens Falls, for respondents.

Before MAHONEY, P.J., and MIKOLL, YESAWICH, CREW and HARVEY, JJ.

MIKOLL, Justice.

Appeals (1) from an order of the Supreme Court (Dier, J.), entered December 5, 1989 in Warren County, which granted defendants' motion for summary judgment, and (2) from the judgment entered thereon.

This case presents the issue of whether Supreme Court erred in granting defendants' motion for summary judgment dismissing plaintiff's complaint which sought specific performance of a contract. The record discloses that on May 12, 1989, the parties entered into a contract of sale of realty which required plaintiff to "execute and deliver to [defendants] a good and sufficient warranty deed conveying to [defendants] the fee simple of the premises". Plaintiff was also required to provide "good and sufficient title" to the property. The description of the property which was attached to the contract made no reference to a right-of-way. Prior to the final date set for closing, plaintiff presented defendants with a preliminary certificate of title which indicated the existence of a right-of-way. A survey of the premises confirmed the existence of a right-of-way across the property, which provided access to an adjacent property. Defendants rejected any conveyance of title not free of the right-of-way and demanded return of their $50,000 deposit. Plaintiff thereafter commenced this action for specific performance. Defendants counterclaimed for recovery of the down payment and damages. After issue was joined, defendants moved for summary judgment dismissing the complaint. The motion was granted and Supreme Court also directed judgment in favor of defendants on their counterclaims. This appeal by plaintiff ensued.

Plaintiff, in opposition to defendants' motion for summary judgment, provided an affidavit of Sandra Lyford, a real estate agent, which indicated that defendants were shown the realty by Lyford; that the right-of-way was readily visible to defendants during two physical inspections made of the property; that defendants inquired as to ownership of the road and were told that it belonged to plaintiff but that the adjacent property owner had an easement over it; and that defendants were shown a survey map of the property and were given an abstract thereof, both of which showed the right-of-way. An affidavit of Sharon Davies, a representative of the realty firm which listed the property, also averred that she provided defendants with a survey map at the time that she showed defendants the property and that the right-of-way was readily visible.

Defendants' motion for summary judgment was supported by, inter alia, a copy of the survey, the realty agreement and an affidavit by defense counsel averring that the term "good and sufficient title" meant "marketable title" and that the existence of the right-of-way constituted a breach of contract. The affidavit of defendant Robert Larson acknowledged awareness of the road in question and that a neighbor was using it, but disclaimed knowledge that it was an encumbrance on the property.

A purchaser of land is entitled to marketable title unless the contract indicates otherwise. A purchaser is entitled to property which may be freely made the subject of resale (Trimboli v. Kinkel, 226 N.Y. 147, 152, 123 N.E. 205). Defendants here contend that use of the term "good and sufficient title" is synonymous...