Kneisser v. Koutsoupakis

In an action for specific performance of a contract for the sale of real property, the plaintiff appeals from a judgment of the Supreme Court, Kings County [421] (Shaw, J.), dated February 12, 1988, which after a nonjury trial, dismissed the complaint. Ordered that the judgment is affirmed, with costs. The contract of sale was expressly made "subject to”, inter alia, the partition of the premises from an adjoining building. Assuming, arguendo, that this provision was inserted in the contract for the plaintiffs benefit (see, Satterly v Plaisted, 52 AD2d 1074, affd 42 NY2d 933), he never exercised a waiver of its terms and has adhered to his demand for specific performance pursuant to the contract. The contract, by its terms, did not obligate the defendants to procure separation by resorting to an action for partition (cf., Weisner v 791 Park Ave. Corp., 6 NY2d 426; Norgate Homes v Central State Bank, 82 AD2d 849). In any event, the evidence established that the defendants properly pursued completing partition but their efforts were thwarted by the resistance of their co-owners. Under these circumstances, the court correctly denied specific performance upon its determination that the defendants properly canceled the contract. We have considered the plaintiffs remaining contentions and find them to be without merit. Mollen, P. J., Mangano, Rubin and Hooper, JJ., concur.