Summary
In Arziliant, a lease provided that the tenant could exercise an option to cancel by a written notice sent by certified mail.
Summary of this case from MONSEY PARK HOME FOR ADULTS v. ORZELOpinion
March 27, 1995
Appeal from the Supreme Court, Nassau County (McCabe, J.).
Ordered that the order is reversed insofar as cross-appealed from, the order and judgment dated April 6, 1992, is vacated, the defendants' motion for summary judgment is granted in its entirety, and the complaint is dismissed; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the respondents-appellants are awarded one bill of costs.
On May 16, 1987, defendant Eagle Chase Associates (hereinafter Eagle Chase) entered into two "purchase agreements", one with "Amherst Associate c/o S.W. Azriliant, P.C.", and the other with plaintiff Sidney Azriliant. The two agreements related to the sale of two condominium units in Woodbury, New York.
Each agreement provided for a downpayment of $50,000, and a closing date of September 1, 1988. Eagle Chase, as seller, was permitted an additional nine-month period, and under certain circumstances an additional 12-month period, within which to perform its obligations, subject to the "purchaser's option to cancel". Paragraph 26 of each agreement stated that the purchaser's option to cancel "must be exercised within 10 days of the expiration of the nine or twelve month period * * * or purchaser['s] option to cancel will be deemed waived". Also, paragraph 29 of each agreement stated, "any notice to be given hereunder shall be in writing and sent by certified mail".
The offering plan relative to the Woodbury condominium development originally provided, in paragraph 29 thereof, that "any notice to be given hereunder shall be in writing and sent by certified mail". This language was deleted from paragraph 29 by virtue of amendment number 2 dated April 14, 1987. The two purchase agreements provided that, in case of a conflict between the terms of purchase agreements and the terms of the offering plan, the terms of the offering plan would control.
The plaintiff claims that he exercised his option to cancel in a letter dated June 5, 1988. The defendant Eagle Chase claims not to have received this letter. This letter, assuming that it was sent at all, was not sent by certified mail.
The plaintiff failed to comply with the defendants' demand to complete the two transactions, and subsequently commenced the present action for a return of the two downpayments. The Supreme Court initially determined that the plaintiff had properly exercised the purchaser's option to cancel, so that summary judgment in his favor was warranted on his first cause of action. The court also granted several branches of the defendants' motion dismissing certain causes of action insofar as they were asserted against specific defendants. However, on reargument, the court determined that issues of fact precluded the granting of summary judgment to either the plaintiff or the defendants. This appeal and cross-appeal followed. We reverse the order insofar as it is cross-appealed by the defendants, and dismiss the complaint.
The parties' rights and obligations are governed by the two purchase agreements, to the extent that the terms of those agreements are not supplanted by any inconsistent provision contained in the offering plan, as amended. The two agreements plainly provide for the mailing by certified mail of the purchaser's option to cancel. Nothing in the original or in the amended offering plan is inconsistent with this provision.
The original offering plan in effect mandated that every purchase agreement include a provision requiring the service of notice by certified mail. This precluded potential buyers from negotiating a provision allowing for the service of notice by any other method. The amended offering plan allows individual purchasers, in negotiation with the seller, to decide what type of notice provision to adopt. Here, the parties adopted a provision requiring notice by certified mail.
Assuming that the plaintiff might have been excused from strict compliance with the service by certified mail provision if there had been proof of the actual receipt of the June 5, 1988 letter by the defendants (see, e.g., Dellicarri v. Hirschfeld, 210 A.D.2d 584; Christy v. Premo, 194 A.D.2d 910; Khalid v. Poses, 184 A.D.2d 258; cf., Weissman v. Adler, 187 A.D.2d 647; D.A.D. Rest. v Anthony Operating Corp., 139 A.D.2d 485), the fact remains that the defendants' denial of the receipt of this letter is uncontradicted. While a rebuttable presumption of receipt based on proof of regular mailing may be available in cases where regular mailing is itself sufficient to comply with the requirements of the law, or with the requirements of the parties' contract (see, e.g., Engel v. Lichterman, 95 A.D.2d 536, affd 62 N.Y.2d 943; Matter of T.E.A. Mar. Automotive Corp. v. Scaduto, 181 A.D.2d 776, 779; Matter of Rosa v. Board of Examiners, 143 A.D.2d 351, 352; see also, Trusts Guar. Co. v. Barnhardt, 70 N.Y. 350; New York N.J. Producers Dealers Coop. v. Mocker, 59 A.D.2d 970; 57 N Y Jur 2d, Evidence and Witnesses, § 158), we do not believe that this presumption is available to the plaintiff herein, in the absence of sufficient evidence attesting to the mailing of the June 5, 1988, letter itself, or to the "existence of an office practice geared to ensure the proper addressing or mailing of [correspondence]" (Matter of Colyar, 129 A.D.2d 946, 947; cf., Matter of T.E.A. Mar. Automotive Corp. v. Scaduto, supra).
In sum, the plaintiff failed to exercise his option to cancel, and he accordingly forfeited his downpayment as the result of his breach of contract. We have examined the remaining issues raised on appeal, and find that the defendants are entitled to summary judgment dismissing the complaint. Mangano, P.J., Bracken, Altman and Goldstein, JJ., concur.