FERCHAW, MICHAEL F. v. TROXEL, RUTH A. , 979 N.Y.S.2d 206 ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1213
    CA 13-00190
    PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
    MICHAEL F. FERCHAW AND REBECCA L. FERCHAW,
    PLAINTIFFS-RESPONDENTS,
    V                             MEMORANDUM AND ORDER
    RUTH A. TROXEL, DEFENDANT-APPELLANT.
    THOMAS J. RZEPKA, ROCHESTER, AND BURKE, ALBRIGHT, HARTER & REDDY, LLP,
    FOR DEFENDANT-APPELLANT.
    ROSSETTIE ROSSETTIE & MARTINO LLP, CORNING (GABRIEL V. ROSSETTIE OF
    COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
    Appeal from a judgment (denominated decision and order) of the
    Supreme Court, Steuben County (Peter C. Bradstreet, A.J.), entered
    September 14, 2012. The judgment granted the motion of plaintiffs
    seeking, inter alia, summary judgment declaring valid and enforceable
    the purchase and sale contract executed by the parties on July 13,
    2011 and seeking certain injunctive relief.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed without costs.
    Memorandum: Plaintiffs commenced this action pursuant to RPAPL
    article 15, seeking a judgment declaring that the real estate contract
    executed by the parties is valid and enforceable. The complaint also
    sought a judgment directing defendant to cooperate with plaintiffs in
    their efforts to perform the contract and to grant plaintiffs access
    to the property for the purpose of obtaining an appraisal. Supreme
    Court granted plaintiffs’ motion for summary judgment on both causes
    of action, issuing the declaration and granting the injunctive relief
    sought by plaintiffs. We affirm.
    In July 2011, shortly after her husband died, defendant
    approached plaintiff Michael F. Ferchaw and asked whether he would
    like to purchase her farm, stating that she wanted to sell the
    property as soon as possible. Defendant had significant debt and a
    fixed income, and she was concerned that she could not afford to keep
    the farm. After inspecting the property, plaintiffs agreed to
    defendant’s purchase price of $300,000. Plaintiffs’ attorney drafted
    the purchase and sale contract, which provided, inter alia, that the
    sale was “contingent upon [plaintiffs] obtaining mortgage financing
    satisfactory to [them] within six (6) weeks of the acceptance of
    [their] offer.” The purchase price set forth in the contract is
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    CA 13-00190
    $375,000, with a $75,000 “gift of equity” to plaintiffs at closing,
    “leaving a balance of $300,000 being payable” to defendant at closing.
    The contract was not contingent upon approval of the parties’
    attorneys.
    The parties executed the contract on July 13, 2011. The
    following day, defendant received an offer from another party to
    purchase the oil, gas and mineral rights on the property for more than
    $440,000. Although, as noted, the contract did not include a
    contingency for attorney approval, defendant’s attorney advised
    plaintiffs on July 15, 2011 that he did not approve of the contract
    and that it was “deemed canceled.” Plaintiffs thereafter commenced
    this action.
    Defendant contends that the court erred in granting plaintiffs’
    motion for summary judgment because plaintiffs offered no evidence
    that they had the financial wherewithal to purchase the property and
    thus failed to establish that they were ready, willing, and able to
    perform under the contract. That contention is raised for the first
    time on appeal and thus is not properly before us (see Ciesinski v
    Town of Aurora, 202 AD2d 984, 985). In any event, defendant’s
    contention lacks merit. Although a plaintiff seeking specific
    performance or monetary damages for nonperformance of a contract must
    demonstrate that he or she was ready, willing and able to perform on
    the contract (see Pesa v Yoma Dev. Group, Inc., 18 NY3d 527, 531-532;
    Madison Invs. v Cohoes Assoc., 176 AD2d 1021, 1021-1022, lv dismissed
    79 NY2d 1040), plaintiffs in this case have not requested specific
    performance or monetary damages; instead, their complaint seeks
    declaratory relief and a court directive that defendant must allow
    plaintiffs on the property for the purpose of obtaining an appraisal.
    We note that, because defendant refused to allow plaintiffs to enter
    the property, plaintiffs were unable to obtain an appraisal, which was
    necessary for them to secure financing. Thus, defendant’s
    anticipatory breach impeded plaintiffs’ ability to demonstrate that
    they were financially capable of purchasing the property.
    Defendant further contends that, because the mortgage contingency
    provision of the contract fails to include essential and material
    terms of the mortgage to be obtained by plaintiffs, such as the
    interest rate and term of the mortgage, there is an issue of fact
    whether the contract is unenforceable under the statute of frauds (see
    General Obligations Law § 5-703 [2]). By failing to plead the statute
    of frauds as an affirmative defense in her answer, however, defendant
    waived that defense (see CPLR 3018 [b]; Griffith Energy, Inc. v Evans,
    85 AD3d 1564, 1566). In any event, we conclude that the contract
    satisfies the statute of frauds inasmuch as it identifies the parties,
    describes the property to be conveyed, sets forth the purchase price
    and the closing date, and provides the medium of payment (see
    Sabetfard v Djavaheri Realty Corp., 18 AD3d 640, 641; Birnhak v
    Vaccaro, 47 AD2d 915, 916). Although there is authority for the
    proposition 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 [a] contract” for the sale of real property (Read
    v Henzel, 67 AD2d 186, 189; see Matter of Licata, 76 AD3d 1076, 1077;
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    Wacks v King, 260 AD2d 985, 987), those cases involve contracts
    pursuant to which the seller loaned money to the buyer and then held a
    mortgage on the transferred property. Here, in contrast, the contract
    provided for defendant to be paid in full at closing and for
    plaintiffs to obtain financing from a third-party lender. Thus, there
    was no need for the parties’ contract to specify the interest rate and
    the term of the mortgage.
    Defendant’s further contention that the “gift of equity”
    provision renders the contract illegal is improperly raised for the
    first time on appeal, and we therefore do not address it (see Mee v
    Strader, 89 AD3d 1487, 1488; Matter of City of Yonkers v International
    Assn. of Firefighters, Local 628, AFL-CIO, 58 AD2d 891, 891, lv denied
    43 NY2d 643). We reject defendant’s related contention that the “gift
    of equity” provision was drafted and presented to defendant in a
    manner calculated to deceive her, and we conclude that defendant’s
    alleged lack of understanding of that provision does not render the
    contract unenforceable (see generally Da Silva v Musso, 53 NY2d 543,
    550). Finally, we conclude that the issue whether a contingency
    provision for attorney approval should be required in residential real
    estate contracts, as defendant suggests, involves “a policy decision
    for the Legislature, not the courts, to make,” and we decline to
    impose such a requirement (Doe v City of Schenectady, 84 AD3d 1455,
    1459).
    Entered:   December 27, 2013                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 13-00190

Citation Numbers: 112 A.D.3d 1310, 979 N.Y.S.2d 206

Filed Date: 12/27/2013

Precedential Status: Precedential

Modified Date: 1/12/2023