Kroboth v. Brent , 625 N.Y.S.2d 748 ( 1995 )

Mikoll, J. P. (dissenting).

I agree with Supreme Court’s conclusion that, in the circumstances of this case, plaintiffs used their "best efforts” to obtain subdivision approval. In my view, this is a question of law to be determined by the court and there is sufficient evidence to warrant the grant of summary judgment in favor of plaintiffs (see, Goewey v Delta D & I Corp., 175 AD2d 299, affd 80 NY2d 788). The property retained by defendant was found to be substandard by the Town Planning Board. Plaintiffs informed defendant of the two options proposed by the Planning Board. The first option was to have plaintiffs purchase the two lots retained by defendant to eliminate the subdivision process altogether. The second option was to seek to have the Department of Environmental Conservation declare these lots to be approved building sites which "could cost several thousand dollars for engineering and take over a year” without any guarantee of success. Plaintiffs made an oral offer to purchase the two lots, but defendant did not respond to the offer or the information except to notify plaintiffs by letter four months later that plaintiffs were in default under the contract and defendant was declaring the contract null and void. The record is clear that plaintiffs took substantial steps to gain the Planning Board’s approval. Defendant points to no precedent for the proposition that a party must pursue all potential alternatives for obtaining subdivision approval to satisfy its obligation to use its "best efforts”. Accordingly, I would affirm. Ordered that the order and judgment are modified, on the law, without costs, by reversing so much thereof as granted plaintiffs’ motion for summary judgment; said motion denied; and, as so modified, affirmed.