Francesa v. Scibetta

In an action, inter alia, to recover a down payment given pursuant to a contract for the sale of real property, the defendants appeal from (1) an order of the Supreme Court, Nassau County (Martin, J.), entered December 6, 2006, which granted the plaintiffs’ motion for summary judgment on the complaint and denied their cross motion for summary judgment dismissing the complaint and on their counterclaim for retention of the down payment, (2) a judgment of the same court entered May 8, 2007, which, upon the order entered December 6, 2006, is in favor of the plaintiffs and against them in the principal sum of $133,135, and (3) an order of the same court entered May 8, 2007, which directed the Treasurer of the County of Nassau to release to the plaintiffs the sum of $132,500 plus accrued interest, representing the sums paid into court by the defendants’ counsel pursuant to court order. Ordered that the appeals from the orders are dismissed, without costs or disbursements; and it is further, [630] Ordered that the judgment is reversed, on the law, without costs or disbursements, the plaintiffs’ motion for summary judgment on the complaint is denied, the order entered December 6, 2006 is modified accordingly, and the order entered May 8, 2007 is vacated. The appeal from the intermediate order entered December 6, 2006 must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order entered December 6, 2006 are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]). The appeal from the order entered May 8, 2007 must be dismissed in light of our determination vacating that order on the appeal from the judgment. The plaintiffs (hereinafter the purchasers) entered into a contract of sale dated May 11, 2005 (hereinafter the contract), with the defendants (hereinafter the sellers) to purchase certain real property located in Plandome Manor (hereinafter the subject property). The sellers had the right, pursuant to paragraph 21 of the contract, inter alia, to take such action as they deemed advisable to remove or remedy any encumbrances or other objections to title made by the purchasers, other than those encumbrances which the purchasers were obligated to accept pursuant to the contract. The sellers also had the right to adjourn the closing for a period or periods not exceeding 60 days. The sellers made their election, pursuant to paragraph 21, to remedy an out-of-possession title exception, arising from the location of certain fences and a retaining wall on the subject property and on an adjacent property owned by a third party (hereinafter the neighbors) which were not located within the record boundary lines of the respective properties. The sellers further elected to adjourn the closing in order to remedy the defect in title in accordance with the contract. After considerable negotiation with the purchasers and the neighbors with respect to remedying this exception, the sellers and the neighbors entered into an agreement that, inter alia, permitted the sellers to relocate the fences and the retaining wall to the record boundary lines (hereinafter the fence agreement). The fence agreement also governed the allocation of future maintenance and repair obligations, and the expenses associated therewith, pertaining to the fences and the retaining wall. Specifically, the fence agreement required the neighbors, the sellers, and their respective successors to repair and maintain, at their own expense, that which was relocated onto their respective properties. [631] Contrary to the purchasers’ contention, the fence agreement did not constitute an encumbrance rendering title to the subject property unmarketable (see Regan v Lanze, 40 NY2d 475, 481-482 [1976]; Dyker Meadow Land & Improvement Co. v Cook, 159 NY 6, 15 [1899]; cf. Maupai v Jackson, 139 App Div 524 [1910]). The fence agreement was unambiguous and, contrary to the purchasers’ contentions, as set forth in their post-closing written demand for a return of the down payment, did not impose “the duty and cost to relocate, maintain and repair the fences and stone retaining wall encroaching on the Sellers’ property” upon the sellers and their successors. In the first instance, the prior encroachments of the fences and the retaining wall were remedied by the sellers’ relocation of those structures prior to the closing. Moreover, contrary to the position advanced by the purchasers on this appeal, the fence agreement did not preclude the sellers and their successors from removing or relocating the fence on the subject property without the neighbors’ consent. Thus, the Supreme Court erred in granting the purchasers’ motion for summary judgment on the complaint, which was premised solely on the ground that the fence agreement rendered title to the subject property unmarketable, since the purchasers failed to make the necessary prima facie showing of entitlement to judgment as a matter of law in connection with this issue (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]), regardless of the sufficiency of the sellers’ opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). On their cross motion, the sellers failed to meet their burden by proffering sufficient evidentiary proof. Thus, the sellers’ cross motion for summary judgment dismissing the complaint was properly denied regardless of the sufficiency of the purchasers’ opposing papers (id. at 853). We do not concur with our dissenting colleague’s view that the sellers “imposed a new burden on title that the purchasers had not agreed to assume,” nor with his conclusion that the “sellers were unable to tender title as required by the contract.” Accordingly, the order directing the Treasurer of the County of Nassau to release to the purchasers the sum of $132,500, representing the down payment, must be vacated. Rivera, J.E, Garni and McCarthy, JJ., concur.