Opinion
April 24, 1995
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The court properly granted the defendants' motions for summary judgment since they proffered sufficient evidence to demonstrate that no triable issues of fact existed, and the plaintiffs' papers in opposition were insufficient to demonstrate otherwise (see, Alvarez v Prospect Hosp., 68 N.Y.2d 320; Zuckerman v City of New York, 49 N.Y.2d 557; Pirozzolo v Dimeo, 141 A.D.2d 810). In particular, we reject the plaintiffs' assertion that there exists an issue of fact as to whether they rescinded the contract by which they were to purchase a two-acre parcel of land from the defendants Howard and Deborah Grace. The record clearly indicates that the plaintiffs were contractually required to take the parcel, which was being partitioned from an existing parcel, "subject to any covenants and restrictions imposed" by the Village of Muttontown Planning Board. Nevertheless, the plaintiffs demanded the return of their down payment after they ascertained that the Planning Board would only approve the subject partition "subject to an express restriction against the erection of accessory structures of any nature whatsoever on the parcel". The Graces then negotiated the sale of the subject parcel to the defendants Michael and Marilyn Gladstein and returned the plaintiffs' down payment. The plaintiffs' rescission and the Graces' acceptance thereof terminated the subject contract (see, Muller Co. v Effangee Tobacco Co., 190 App. Div. 808, 809, affd 229 N.Y. 594; 22 N.Y. Jur 2d, Contracts, § 415). Since the subject contract was no longer binding upon the parties, the remedy of specific performance is unavailable to the plaintiffs (see, Brody v W. L. Enters., 4 Misc.2d 907, 910, affd 281 App. Div. 867; 96 N.Y. Jur 2d, Specific Performance, § 12). The plaintiffs assert that they were fraudulently induced into rescinding the contract because the Graces purposely applied to the Village of Muttontown Planning Board for the partition of the property which restricted the plaintiffs' use thereof. This argument is without merit, since the plaintiffs were contractually required to take the parcel "subject to any covenants and restrictions imposed" by the Planning Board. Bracken, J.P., Pizzuto, Hart and Krausman, JJ., concur.