Parker v. Booker , 822 N.Y.S.2d 156 ( 2006 )

Lifson, J.,

dissents and votes to reverse the judgment and award specific performance to the plaintiff, with the following memorandum: The evidence at the nonjury trial established the following facts. On February 10, 1998 the plaintiff and the defendant executed an agreement entitled “Option For Purchase of Real Property” (hereinafter the agreement) regarding land owned by the defendant. Pursuant to the agreement, the plaintiff received an option for four years to purchase the land for $145,000. The agreement provided, inter alia, that, the “buyer will pay all real estate taxes on the land during this period of development.” The agreement was silent as to the mechanism for notifying the plaintiff when the taxes were due or when the plaintiff was obligated to tender payment or to whom payment was to be tendered (i.e., the tax receiver or the defendant in the nature of reimbursement). The record showed however, that before executing the agreement, on January 12, 1998, $2,050.09 for the real estate taxes due on the property was paid by the plaintiff for the period from December 1, 1997 through May 31, 1998.

Thereafter the plaintiff never paid any further sums to the defendant or the tax receiver. However, during this time the defendant never forwarded any tax bills to the plaintiff or demanded any reimbursement of any taxes actually paid. Instead, during that period, the defendant timely paid all of the taxes on the land. At no time did the defendant ever communicate with the plaintiff and demand payment for the taxes advanced by the defendant or intimate to the plaintiff that his failure to pay the taxes when due was causing her to deem the option void. On September 11, 2000, unbeknownst to the plaintiff, the defendant listed the land for sale with a broker. On October 20, 2000, and again on November 9, 2000, the plaintiff notified the defendant in writing of his desire to exercise the option to purchase the land, but the defendant refused to sell him the land.

After a nonjury trial, the court ruled in favor of the defendant, finding that the plaintiff forfeited his right to exercise the purchase option by failing to pay the property taxes.

For the reasons set forth below, I think that result is contrary to the facts adduced at trial and contrary to established law. In an action to enforce an option, the holder of the option has the burden of establishing that “a tender of his or her own performance was made unless tender was waived or the necessity for such a tender was obviated by acts of the other party amounting to an anticipatory breach of the contract or establishing that such party would be unable to perform” (Madison Invs. v Cohoes Assoc., 176 AD2d 1021, 1021-1022 [1991] [citations omitted]; see Morey v Sings, 174 AD2d 870 [1991]). The facts clearly show that the plaintiff satisfied this burden. The issue dividing the panel is the effect of the plaintiff’s failure to pay the outstanding real estate taxes. In my view nothing in the option agreement provided for a time in which the taxes were to be paid. That one obligated to pay real estate taxes may defer such payments beyond the time contemplated by the taxing authority is a common practice in the sale of real estate for development purposes.

More significantly, the facts that the defendant previously accepted payment of taxes upon presentment to the plaintiff of a tax bill and that, thereafter, the defendant never forwarded the tax bills over which she had exclusive control to the plaintiff or even made demand of the plaintiff for the payment of the taxes before reneging on the contract, relieved the plaintiff from proving what would otherwise be an essential element of his cause of action (see Moray v DBAG, Inc., 305 AD2d 472 [2003]; Ehrenpreis v Klein, 260 AD2d 532 [1999]). At trial, the defendant offered no satisfactory explanation as to why she made no attempts to seek payment for the taxes from the plaintiff. The inescapable conclusion is that her assertion that the plaintiffs failure to pay taxes voided the option was merely an after-the-fact rationalization for her breach of the contract.

Accordingly, I would reverse the judgment appealed from and award specific performance to the plaintiff.