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K. PURCHASE AND SALE CONTRACTS

Jackson v. Cobert (161 Misc. 2d 33) permits "oral" extension of time to obtain mortgage commitment; return of deposit.

2. Matter of Sakaris (160 Misc. 2d 657) out-of-state notary witnessing signature in New York is defective (General Construction Law §12).

3. Callahan v. Miller (194 A.D.2d 904) verdict for purchaser reversed and complaint dismissed, due to contract inspection contingency (which buyer chose not to exercise); matter in dispute (the adequacy of water supply) was not peculiarly within seller's knowledge and buyer had means available to know the real quality thereof.

4. Dub v. 47 Ed. 74th St. Corp. (204 A.D.2d 145) seller defaulted in performing obligations on law day, which he had created by sending buyer "time of the essence" letter; return of deposit

5. Tejani v. Allied Princess Bay Co. (204 A.D.2d 618) order and judgment modified denying plaintiff's summary judgment, seller's time to perform was necessarily supplanted as a result of modification agreement; the parties implicitly extended seller's time to perform; issues of fact raised.

6. Benalaya v. Campbell (204 A.D.2d 671) seller's tenant failed to vacate by time of closing; buyer's letter stating deadline for vacancy failed to make "time of the essence" since it also stated option for new closing date if premises vacated by certain date; seller entitled to reasonable adjournment; "unreasonable" deadline.

7. Patrick v. Guarniere (204 A.D.2d 702) contract conditioned upon buyers obtaining zoning; upon failure to obtain zoning before deadline, buyers contractually entitled to cancel contract; extension clause doesn't allow sellers unilateral right to extend time; return down payment, plus interest.

8. White v. Long (204 A.D.2d 892) order modified with costs to seller, where seller's lack of knowledge of additional storage tank on property is not willful violation, thus, does not constitute negligence or failure to comply with regulations and mandates; no violation of Navigation Law §181 since buyer cannot assert a private right of action against seller because of his status as a discharger; warranty of quiet enjoyment not broken; contract mergers with deed except for provisions concerning collateral matters; no conditions present to preclude merger; buyer precluded from claiming breach of contract; plaintiff relied upon results of testing by its independent contractor and based thereon waived all contingencies.

9. Banker N. Salem Assoc. I v. Haight (204 A.D.2d 949) seller's motion for summary judgment dismissing complaint affirmed, no inquiry or representation or warranty made or given re: condition of property or chemicals stored or applied, no contingency upon freedom from toxic chemicals or hazardous waste; buyer fails to show that contract or transfer of title was induced by material fraud.

10. Couch v. Schmidt (204 A.D.2d 951) order modified, summary judgment granted complaint dismissed, whereseller established prima facie case that property sold "as is" per terms of contract, no breach of contract or deed.Specific disclaimers addressing physical conditions of property go beyond generalized merger clauses and defeats buyer's allegations of oral representation, thus no failure to disclose or misrepresentation or fraudulent concealment by seller; question of fact as to "deliberate concealment."

11. Dellicarri v. Hirschfeld (210 A.D.2d 584) - contract modifications; contingency dates may be orally waived or modified -- even where sales contract provides for no oral modifications; strict compliance with notice provisions not required where receive actual notice or are not prejudiced thereby.

12. Rachmini v. 9E. 96th St. Apt. Corp. (211 A.D.2d 262) - exclusive right to sell; oral contract; statute of limitations; oral commission agreement not barred by Statute of Frauds; implied obligation of good faith; statute of limitations runs from act of repudiation (citing Ely-Cruikshank Co. v. Bank of Montreal); no repudiation, breach occurs on closing date with failure to pay commission; exclusive right to sell entitles broker to commission on sale to any purchaser.

13. Ulrich v. Daly (225 A.D.2d 229) - attorney’s approval clause; attorney’s timely disapproval used to avail seller of subsequent better offer; attorney is permitted to consider extrinsic matters in the approval process. McKenna v. Case (123 A.D.2d 517) distinguished.

14. Cohan v. Sicular (214 A.D.2d 637) motion for summary judgment dismissing buyer's complaint against brokers reversed; buyer sufficiently stated a cause of action sounding in fraud against listing and selling brokers where buyers alleged that brokers confirmed alleged misrepresentation on the part of seller as to the amount of annual real estate taxes. Buyer's fraud complaint against sellers is dismissed, as seller was insulated by merger clause in deed ("after full investigation neither party (is) relying upon any statement made by anyone else that is not set forth in this contract.") In contrast, brokers not entitled to summary judgment dismissing complaint based upon merger clause in the sales contract, as brokers (listing broker and buyer's broker) are not a party to real estate contract.

15. Casey v. Masullo Brothers Builders, Inc. (218 A.D.2d 907) - Buyer sues seller for fraud, misrepresentation, mistake of fact and breach of contract where buyer purchased residence based upon representations by seller through newspaper advertisements and representations by seller’s Realtor regarding the school district within which the property was located; Realtor’s statement based upon own investigation, loan profile sheet from an abstract company prepared prior to the closing, and town tax rolls which confirmed placement of the property within the disclosed school district; unless the facts are matters peculiarly within one party’s knowledge, the other party must make use of means available to him to ascertain, by the exercise of ordinary intelligence, the truth of such representations; question of fact exists whether a reasonable inquiry would have revealed the correct school district; order dismissing seller’s motion for summary judgment affirmed.

16. Ulrich v. Daly (225A.D.2d 229) attorney’s approval clause; attorney may consider matters extrinsic to the contract (e.g., other and better offers) in disapproving of certain provisions in the contract where attorney’s approval clause requires approval as to “all matters contained” in the purchase offer; seller did not act in bad faith where attorney considered contract and was not interfered therewith or prevented therefrom by sellers; consideration of other offers is not bad faith.

17. Jackson v. ITT Corp. (221 A.D.2d 237, mot. for leave to app. den. 87 N.Y.2d 810) - oral agreement for finder’s fee unenforceable under Massachusetts law; if New York law applied, and contract was otherwise enforceable under exception to New York Statute of Frauds, court would not enforce otherwise void contract to allow attorney to use his broker’s licensing exemption to benefit a non-licensed, non-exempt party.

18. 160 Chambers St. Realty Corp. v. Register of the City of New York (226 A.D.2d 606) - a letter or memorandum may be enforceable as a contract for the sale of real property where it identifies the parties, describes the subject matter, states the essential terms, and is signed by the party to be charged - even where parties anticipated execution of a more formal agreement; such terms as the medium of payment and date of final payment may be presumed to be money and upon delivery of the deed.

19. Long v. Fitzgerald (240 A.D.2d 971) - a general merger clause in a purchase and sale contract does not serve to exclude parole evidence of fraud in the inducement; a specific disclaimer proscribes the allegations in plaintiff’s complaint that the agreement was executed in reliance upon contrary oral misrepresentations; unless the facts represented are matters particularly within one party’s knowledge, the other party must make use of means available to it to learn, by the exercise of ordinary intelligence, the truth of such matters or it will not be heard to complain that it was induced to the transaction (citing Callahan v. Miller).

20. Schooley v. Mannion (241 A.D.2d 677) - order granting broker/owner’s motion to dismiss fraud in the inducement complaint for failure to state a cause of action reversed; general merger clause in purchase and sale contract does not serve to exclude parole evidence of fraud in the inducement; while a specific disclaimer may provide a defense against allegations in a complaint that the agreement was executed in reliance upon oral misrepresentations, the contract in question merely had an “as is” merger clause and did not specify that the purchaser was not relying upon representations as to the physical condition of the property; alleged defect (property was not insulated according to representation) was peculiarly within broker/owner’s knowledge (especially after broker/owner recently gutted and renovated premises).

21. Christ v. Brontman (175 Misc.2d 474, Moreau County Supreme Court) - purchase and sale contract was contingent upon engineering inspection and attorney’s approval; purchase and sale contract provided attorney approval contingency stating: that the contract was subject to the written approval of the attorneys for buyer and seller within three bank days from the date of acceptance, if either attorney makes written objection and such objection is not cured within a specified period of time, then either buyer or seller may cancel the contract by written notice to the other; such provision requires notice, a period to cure and further notice of termination; seller failed to provide notice of cancellation based upon the attorney’s approval contingency; an engineering inspection contingency for the sole benefit of the buyer may be waived by the buyer without the consent of seller; buyer’s motion for summary judgment against seller awarding specific performance granted

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