Caulfield v. Improved Risk Mutuals, Inc. , 486 N.Y.S.2d 531 ( 1985 )

Hancock, Jr., J.

(dissenting). The sole question is whether the date referred to in the term “[r]isk of loss from any cause is assumed by Seller to the date of closing” is the time of the escrow closing or the time that title is transferred. The above term specifically stating that the seller’s risk is terminated at “the date of closing”, contained in seller’s counteroffer of June 25, 1982 and accepted by the buyers, supersedes the inconsistent term in the buyers’ original offer to the effect that the seller assumes the risk of loss until “transfer of title” (see 21 NY Jur 2d, Contracts, § 56, pp 472-473). Indeed, the counteroffer provided that the terms of the original offer were accepted “except that” the terms set forth in the counteroffer, which were inconsistent with or supplemental to those in the original offer, would apply. The counteroffer clearly contemplated that an escrow closing in advance of the actual passage of title would be necessary so that approval by a Supreme Court Justice could be obtained. In recognition of this circumstance, paragraph 2 (b) of the counteroffer provided that the buyers would deliver a second mortgage in the amount of $69,000 “at closing”, that the balance of the purchase price (not covered by the first or second mortgage) would be paid in cash “at closing” (par 2 [c]) and that the mortgage interest would be adjusted “at the time of closing” (par 9). In each of the foregoing instances, the parties in referring to the date of closing as marking the time for a particular performance by the buyers were referring not to the date of title transfer but to the date of the escrow closing. That the parties considered the word “closing” to mean escrow closing is apparent from the subsequent amendment dated August 16, 1982, providing that “[cjlosing shall occur on or before October 1, 1982”, the date that escrow closing ultimately took place. There is no reason to believe that in specifying in paragraph 6 of the counteroffer of June 25, 1982, that it would assume the risk of loss “to the date of closing”, the seller was agreeing to assume the risk beyond the date of the escrow closing when it would receive full payment and cease to be obligated for interest payments. On the date of the escrow closing the seller was to deliver possession to the buyers and, except for the formality of court approval, the transaction was to be fully consummated. No plausible reason is suggested why the seller, which was to be out of possession and in receipt of full payment from the buyers, would agree to remain responsible for losses beyond that date. Indeed, the buyers, in procuring their own insurance binder effective October 1, 1982, the date they assumed possession, have recognized that they had an insurable interest in the property after that date and that the risk of loss under the contract had passed to them. (Appeal from judgment of Supreme Court, Monroe County, Davis, J. — declaratory judgment.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Schnepp, JJ.