Calcagno v. Roberts , 21 N.Y.S.3d 751 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 10, 2015 521023
________________________________
PAUL CALCAGNO JR.,
Respondent,
v MEMORANDUM AND ORDER
ALBERT ROBERTS et al.,
Appellants.
________________________________
Calendar Date: October 23, 2015
Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.
__________
Rapport Meyers, LLP, Hudson (Victor M. Meyers of counsel),
for appellants.
Law Office of John Hoggan, PLLC, Albany (John D. Hoggan Jr.
of counsel), for respondent.
__________
Devine, J.
Appeal from an order of the Supreme Court (Koweek, J.),
entered February 25, 2015 in Columbia County, which denied
defendants' motion to dismiss the complaint.
On July 28, 2014, plaintiff entered into an alleged
contract with defendant Albert Roberts to purchase two parcels of
real property in the Village of Kinderhook, Columbia County for
$900,000. Roberts is the sole owner of defendants 8 Broad Street
Holdings, LLC and 12 Broad Street Kinderhook, LLC, the entities
that hold title to the properties. The agreement contained an
attorney approval contingency and, on September 17, 2014, counsel
for defendants disapproved it and attempted to return the down
payment. This action ensued, with plaintiff seeking a
declaration that the agreement was enforceable and an order
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directing specific performance. Defendants moved to dismiss the
complaint based on the statute of frauds and the disapproval of
the agreement by their attorney.1 Supreme Court denied the
motion, and defendants appeal.
We affirm. "The statute of frauds provides, as relevant
here, that a contract for the sale of real property 'is void
unless the contract or some note or memorandum thereof,
expressing the consideration, is in writing, [and] subscribed by
the party to be charged'" (Post Hill, LLC v E. Tetz & Sons, Inc.,
122 AD3d 1126, 1127 [2014], quoting General Obligations Law § 5-
703 [2]). Plaintiff produced a written purchase offer and
deposit receipt that was signed by Roberts and styled as "a
legally binding contract." Indeed, the two men struck a
provision in the document that would have allowed either of them
to cancel the purchase offer if a formal contract of sale was not
consummated. There is no doubt that such an instrument will
satisfy the statute of frauds if it unequivocally sets forth "all
the essential elements of a contractual relationship . . . such
as price, terms, parties and a description of the subject matter"
(Bordeau v Oakley, 185 AD2d 417, 418 [1992]; see Post Hill, LLC v
E. Tetz & Sons, Inc., 122 AD3d at 1127; McCormick v Bechtol, 68
AD3d 1376, 1378-1379 [2009], lv denied 15 NY3d 701 [2010], cert
denied 562 U.S. 1063 [2010]). The agreement does so, and
defendants' attempts to argue otherwise are unpersuasive.
Defendants point out "that 'the terms and conditions of a
mortgage subject to which a purchaser is to take title to real
property are essential and material elements of the contract'"
(Wacks v King, 260 AD2d 985, 987 [1999], quoting Read v Henzel,
67 AD2d 186, 189 [1979]). The agreement specifies that Roberts
will loan purchase money to plaintiff at a set interest rate and
1
During the pendency of the motion to dismiss, plaintiff
served an amended complaint that asserted an additional cause of
action. Because the amended complaint did not substantively
alter the challenged causes of action, issues regarding the
viability of the claims in the original complaint are not moot
(see Aetna Life Ins. Co. v Appalachian Asset Mgt. Corp., 110 AD3d
32, 39 [2013]; Anthony J. Demarco, Jr., P.C. v Bay Ridge Car
World, 169 AD2d 808, 809 [1991]).
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hold a mortgage on the property for two years, and the amount of
the loan may readily be implied from the fact that only $50,000
of the purchase price is otherwise accounted for (see Dickson v
Mitchell, 87 AD2d 697, 698 [1982]; Rohrwasser v Al & Lou Constr.
Co., 82 AD2d 1008, 1008-1009 [1981]; Lashway v Sorell, 51 AD2d
97, 98 [1976], appeal dismissed 39 NY2d 799 [1976]). The
agreement appears to set an interest rate of 3% for the mortgage,
and parol evidence may be used to resolve any ambiguity created
by markings on the document that may have been intended to alter
that figure (see Balkum v Marino, 299 NY 590, 592 [1949]; Lashway
v Sorell, 51 AD2d at 98-99).
Defendants further note that the agreement was contingent
upon attorney approval, and that their attorney disapproved of
it. Plaintiff, seizing on the fact that the agreement only
requires disapproval to be in writing, submitted the affidavit of
his counsel in the real estate transaction, who averred that
counsel for defendants had orally approved the agreement prior to
disapproving it in writing. Accepting plaintiff's representation
as true, as we must in the context of a motion to dismiss by
defendants (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Nelson
v Lattner Enters. of N.Y., 108 AD3d 970, 971 [2013]), an
unequivocal approval of the agreement would make it "binding and
enforceable" against defendants (Schreck v Spinard, 13 AD3d 1027,
1027 [2004]; cf. Pohlman v Madia, 132 AD3d 1370, 1372 [2015]).
In any case, the agreement "contained no time limit within which
[counsel] had to cancel [it], and therefore a reasonable time for
cancellation thereunder is implied" (Yuen v Kwan Kam Cheng, 69
AD3d 536, 537 [2010]). Counsel for defendants did not disapprove
the agreement until almost two months after it was executed and
less than two weeks before the contemplated closing date.
"Ordinarily, what constitutes a reasonable time is a
fact-specific inquiry," and plaintiff's allegations as to what
transpired between the parties preclude dismissal of the
complaint (Sutton v Burdick, 75 AD3d 884, 885 [2010], lv
dismissed 15 NY3d 874 [2010]; see Lituchy v Guinan Lithographic
Co., 60 AD2d 622, 622 [1977]; compare Hegeman v Bedford, 5 AD3d
632, 632-633 [2004]).
Defendants' remaining arguments, to the extent that they
are properly preserved for our review, have been examined and
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found to be lacking in merit.
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court