Opinion
13202 Index No. 305615/13 Case No. 2019-03630
02-25-2021
USA RECYCLING INC., Plaintiff–Appellant, v. BALDWIN ENDICO REALTY ASSOCIATES, INC., Defendant–Respondent.
Anthony J. Centone, P.C., Mohegan Lake ( Anthony J. Centone of counsel), for appellant. LePatner & Associates, LLP, New York (Harry J. Petchescky of counsel), for respondent.
Anthony J. Centone, P.C., Mohegan Lake ( Anthony J. Centone of counsel), for appellant.
LePatner & Associates, LLP, New York (Harry J. Petchescky of counsel), for respondent.
Acosta, P.J., Renwick, Singh, Mendez, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about May 24, 2019, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
The motion court correctly enforced the contract for the purchase of real property in accordance with its plain terms ( see W.W.W. Assoc., Inc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 [1990] ). Plaintiff's contention that it is entitled to an additional, extra-contractual credit of $120,000, which it claims was paid to defendant two years before the contract was entered into, is insufficient to create an ambiguity. "Such a fundamental condition would hardly have been omitted" ( Braten v. Bankers Trust Co., 60 N.Y.2d 155, 163, 468 N.Y.S.2d 861, 456 N.E.2d 802 [1983] ). To consider plaintiff's extrinsic evidence would also run afoul of the parol evidence rule ( Marine Midland Bank–S. v. Thurlow, 53 N.Y.2d 381, 387, 442 N.Y.S.2d 417, 425 N.E.2d 805 [1981] ).
Plaintiff's contention that it was entitled to an adjournment of the closing date because there was no "time of the essence" language in the contract is unavailing. As the contract had a specific termination provision, a "time of the essence" provision was unnecessary ( Squicciarini v. Park Ridge at Terryville Assoc., 199 A.D.2d 376, 377, 605 N.Y.S.2d 372 [2d Dept. 1993] ). Plaintiff's argument that defendant anticipatorily breached the contract is also unavailing ( see Pesa v. Yoma Dev. Group, Inc., 18 N.Y.3d 527, 942 N.Y.S.2d 1, 965 N.E.2d 228 [2012] ). Defendant's counsel prepared all of the documents required to close at the appointed time and place, and it was plaintiff that committed the breach by failing to appear with the required funds.