Patrick v. Bodwitch , 423 N.Y.S.2d 759 ( 1979 )

unanimously affirmed, with costs. Memorandum: Defendant appeals from an order at Special Term denying his motion for judgment dismissing plaintiffs’ action for specific performance and damages under a real estate purchase contract on the grounds that the contract is void and that the action is barred by the Statute of Limitations and the Statute of Frauds. On January 5, 1972 plaintiffs’ attorney drafted a proposed purchase offer which contained a provision that the offer must be accepted by January 10, 1972. Neither plaintiffs nor defendant saw the purchase offer until January 17, 1972, on which date one of the plaintiffs and the defendant signed it. Negotiations ensued concerning title problems with the property until March 22, 1979, when defendant informed plaintiffs’ attorney that he would not consummate the sale. Defendant contends that the contract is void because not accepted by January 10, 1972, as provided therein. When they signed the contract on January 17, 1972, the parties chose to treat the provision requiring acceptance by January 10 as a nullity. Subsequent actions of the parties consistent with the existence of a contract (e.g., negotiations concerning the title) confirm the finding that the parties did not consider the provision to be effective. Thus, the contract is valid and the transaction is not within the Statute of Frauds. The limitations period for the instant action did not begin to run until the date of the alleged breach on March 22, 1979. (Appeal from order of Oswego Supreme Court — dismiss complaint.) Present — Cardamone, J. P., Simons, Hancock, Jr., Doerr and Moule, JJ.