Chocolas Associates Ltd. Partnership v. Handelsman

—Order and judgment (one paper), Supreme Court, New York County (Ira Gammerman, J.), entered September 23, 1998, which, after a nonjury trial, inter alia, adjudged that defendants were not entitled to an automatic price reduction in the purchase of real property pursuant to a settlement agreement, unanimously affirmed, with costs. The trial court properly determined that the terms of the settlement agreement between the parties were sufficiently ambiguous to warrant the introduction of extrinsic evidence, despite the existence of a merger clause (see, Concoff v Occidental Life Ins. Co., 4 NY2d 630), and in light of the trial testimony, particularly that evidencing the parties’ previous conduct under the same right of first refusal provision, the court properly found that defendants’ offer to purchase the plaintiffs’ property, for an amount 4% less than the competing purchaser’s offer, did not constitute a “matching offer” under the agreement. Also proper was the court’s refusal to grant a mid-trial continuance to permit defendant Handelsman to testify, since the trial date had been set almost three months earlier and defendant’s inability to appear was attributable to the fact that he was on a vacation cruise. Defendants’ present claims that the trial court improperly interjected itself into the proceedings are not preserved for our review and, in any event, are unpersuasive (see, Moody v Sun, 127 AD2d 570, lv denied 70 NY2d 604). Concur — Rosenberger, J. P., Tom, Rubin, Saxe and Buckley, JJ.