Mack-Lowe v. Picault-Cadet

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered November 30, 2004, which, upon plaintiffs motion for renewal/reargument, granted summary judgment and directed defendant to render specific performance by conveying to plaintiff the shares in the cooperative apartment, affirmed, without costs. It is well settled that parol evidence may be admissible to establish a condition precedent to the legal effectiveness of a written contract if such condition is not contradictory to, or in variance with, the written terms of the agreement (Bank of Suffolk County v Kite, 49 NY2d 827, 828 [1980]; Hicks v Bush, 10 NY2d 488, 491 [1962]), and the merger clause, which provides that the written document embodies the entire agreement of the parties, is of no consequence until there is a contract in effect (Tropical Leasing v Fiermonte Chevrolet, 80 AD2d 467, 469 [1981]; Procopis v G. P. P. Rests., 43 AD2d 974, 975 [1974]). In this matter, we agree with the motion court that the alleged condition precedent to the contract, that the Internal Revenue Service (IRS) had to accept defendant’s offer in compromise of her tax liability,* which would result in the discharge of [505] the federal tax liens filed against the apartment, directly contradicts article 15.2 of the contract of sale, which specifically provides for the discharge of liens at closing. That provision states, in pertinent part, that “Seller, at Seller’s expense, shall obtain and deliver to the Purchaser the documents and payments necessary to secure the release, satisfaction, termination and discharge or removal of record of any Liens and Judgments. Seller may use any portion of the Purchase Price for such purposes” (emphasis added). Defendant’s rebuttal to the foregoing, really a distinction without a difference, is that the motion court mischaracterized the condition precedent as a question of whether or not a lien exists, rather than the IRS’s acceptance of defendant’s pending offer in compromise of her tax liability which acceptance, of course, would result in the discharge of the liens. The mechanism for such a discharge, however, is specifically provided for in article 15.2 of the contract. Moreover, the transcript of a January 12, 2004 telephone conversation which took place between plaintiff and defendant, which was apparently recorded in the normal course of business by plaintiffs employer, does nothing to support defendant’s assertion that the IRS’s acceptance of the compromise was a condition precedent to the sale. Rather, the transcript indicates that defendant, when asked by plaintiff if she wanted to dissolve the deal so the IRS would not take the money, replied, “No, I want them off my back more than anything.” Finally, to the extent defendant claims otherwise, we note that the condition precedent alleged by defendant is the sort of agreement that parties to a contract would be expected to make in writing (cf Hicks, 10 NY2d at 493). Concur—Tom, J.E, Mazzarelli, Saxe and Nardelli, JJ. Footnotes [*] We note that the rejection of defendant’s offer of compromise by the IRS is not very shocking, as defendant valued her apartment in the offer to the IRS at $55,000, whereas the contract of sale with plaintiff called for a purchase price of $200,000. The IRS was aware of the market value of the apartment, however, and rejected the offer accordingly.