Opinion
2002-06943
Submitted March 18, 2003.
April 7, 2003.
In an action for a judgment declaring that the plaintiff is entitled to retain a down payment on a real estate contract as liquidated damages, the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered June 13, 2002, which granted the plaintiff's motion for summary judgment.
James A. Cartelli, White Plains, N.Y. (M. Stuart Goldberg, LLC, of counsel), for appellant.
Huff Wilkes, LLP, White Plains, N.Y. (David C. Wilkes and Thomas A. McTigue of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, HOWARD MILLER, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment declaring that the plaintiff is entitled to retain the defendant's down payment of $25,000 as liquidated damages.
The plaintiff and the defendant entered into a contract in which the defendant agreed to purchase a multi-family apartment building from the plaintiff. The plaintiff commenced this action for a judgment declaring that it was entitled to retain the defendant's down payment as liquidated damages pursuant to the contract when the defendant refused to proceed with the closing after receiving a "time is of the essence" letter from the plaintiff's attorney.
The Supreme Court properly granted the plaintiff's motion for summary judgment. The contract at issue is unambiguous (see W.W.W Assocs. v. Giancontieri, 77 N.Y.2d 157). Since nothing therein required the plaintiff to obtain certificates of occupancy for all of the residential units in the building, we will not "`imply a term which the parties themselves failed to insert' or otherwise rewrite the contract" to require the plaintiff to do so (Lui v. Park Ridge at Terryville Assn, 196 A.D.2d 579, 581, quoting Mitchell v. Mitchell, 82 A.D.2d 849; see also Charter Realty Dev. Corp. v. New Roc Assoc., 293 A.D.2d 438, 439).
The defendant's claim regarding the inadequacy of the plaintiff's "time of the essence" letter is not preserved for appellate review since it was not raised by the defendant in opposition to the plaintiff's motion for summary judgment (see Crawford v. Windmere Corp., 262 A.D.2d 268; Lesman v. Weinrib, 221 A.D.2d 601), and is improperly raised for the first time in the defendant's reply brief (see NAB Asset Venture IV v. Orangeburg Equities, 299 A.D.2d 528; Soon Rae Kim v. Caesar Chemists, 297 A.D.2d 797).
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court for the entry of a judgment declaring that the plaintiff is entitled to retain the defendant's down payment as liquidated damages (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
FEUERSTEIN, J.P., SMITH, H. MILLER and TOWNES, JJ., concur.