Whitney v. Perry

• Decision Date: 13 October 1994
• Citation: 617 N.Y.S.2d 395,208 A.D.2d 1025
• Parties: Kevin WHITNEY et al., Respondents, v. Harlow PERRY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 395

617 N.Y.S.2d 395

208 A.D.2d 1025

Kevin WHITNEY et al., Respondents, v. Harlow PERRY, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 13, 1994.

Clements & Ducharme P.C. (Barry H. Bley, of counsel), Canton, for appellant.

Du Pre and Small P.C. (Ramona A. Breen, of counsel), Ogdensburg, for respondents.

Before MIKOLL, J.P., and MERCURE, YESAWICH and PETERS, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), entered April 20, 1993, which, inter alia, granted plaintiffs' motion for summary judgment.

The question presented on this appeal is whether the language of the purchase and sale agreement, providing that the sale was contingent upon plaintiffs obtaining financing and that the closing was to occur by June 30, 1992 "or as soon thereafter as abstract(s) can be brought up to date but in no event later than sixty (60) days after the scheduled closing date unless this Agreement is extended in writing by all parties thereto", made "time of the essence" entitling defendant to unilaterally cancel the agreement when the closing did not take place within 60 days of June 30, 1992 and the time period was not extended in writing. ¹ The purchase and sale agreement containing the above language was executed in March 1992 by plaintiffs for the purchase of property owned by defendant in the Town of Lisbon, St. Lawrence County. Defendant executed the agreement on April 5, 1992. By letter dated June 11, 1992, defendant's counsel advised that defendant was canceling the agreement because plaintiffs had not obtained their mortgage commitment by the specified date. Plaintiffs' counsel informed defendant that, contrary to defendant's belief, plaintiffs had timely obtained a mortgage commitment in May 1992. Several communications followed.

In a letter dated July 7, 1992, defendant's counsel advised plaintiffs' counsel that the abstract of title was being updated and that the closing documents would be forwarded to him. By letter dated August 24, 1992, defendant's counsel forwarded the proposed deed and closing documents to plaintiffs' counsel for review, with a request for a closing date. The documents forwarded, however, contained errors and the abstracts of title were not current.

By letter dated August 31, 1992, defendant's counsel advised plaintiffs' counsel that defendant was not willing to complete the transaction because the closing did not occur within 60 days of June 30, 1992. Plaintiffs' counsel informed defendant by letter dated September 2, 1992 of the defects in the closing documents and requested that they be cured. By letter dated September 17, 1992, defendant's counsel again stated that defendant refused to close the deal and requested the return of the closing documents. By letter dated September 22, 1992, counsel for plaintiffs notified defendant's counsel that the closing was set for September 29, 1992. Plaintiffs were present on the date set for closing but neither defendant nor his counsel appeared. Plaintiffs thereafter commenced the instant action for specific performance and subsequently moved for summary judgment. Defendant cross-moved for summary judgment. County Court granted plaintiffs' motion and this appeal by defendant ensued.

It has been held that time is never of the essence in real estate contracts, even if a closing date is stated, unless the contract specifically so provides, or if special circumstances surrounding its execution so require (see, Sohayegh v. Oberlander, 155 A.D.2d 436, 438, 547 N.Y.S.2d 98; Andesco Inc. v. Page, 137 A.D.2d 349, 355-356, 530 N.Y.S.2d 111; Spence v....