Opinion
01-26-2015
Shane AKEROYD, Plaintiff–Respondent, v. SOHO 311 DEVELOPMENT, INC., Defendant–Appellant.
D'Agostino, Levine, Landesman & Lederman, LLP, New York (Bruce H. Lederman of counsel), for appellant. Wrobel Schatz & Fox LLP, New York (David C. Wrobel of counsel), for respondent.
D'Agostino, Levine, Landesman & Lederman, LLP, New York (Bruce H. Lederman of counsel), for appellant.
Wrobel Schatz & Fox LLP, New York (David C. Wrobel of counsel), for respondent.
TOM, J.P., ACOSTA, SAXE, MOSKOWITZ, FEINMAN, JJ.
Opinion Order, Supreme Court, New York County (Jeffery K. Oing, J.), entered February 11, 2014, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs and the motion granted. The Clerk is directed to enter judgment accordingly.
Given that plaintiff entered into an additional agreement with defendant whereby defendant performed further renovation work for plaintiff on the units at issue, plaintiff waived his right to rescind the purchase agreement based on a previously disclosed error in the description of the condominium's real property (see New York Tel. Co. v. Jamestown Tel. Corp., 282 N.Y. 365, 372, 26 N.E.2d 295 [1940] ). This is particularly so where the new agreement expressly reaffirmed the validity of the purchase agreement (cf. Navillus Tile v. Turner Constr. Co., 2 A.D.3d 209, 211, 770 N.Y.S.2d 3 [1st Dept.2003] ). Although plaintiff is correct that there are issues of fact as to whether the offering plan's erroneous inclusion of a 2,000–square–foot adjacent lot in the description of the condominium's real property was material (see Weiner v. Memphis Uptown Assoc., 168 A.D.2d 353, 562 N.Y.S.2d 676 [1st Dept.1990] ), that issue is irrelevant in light of plaintiff's waiver.