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Collegiate Asset Mgt. v. 45 John Mezzanine

Appellate Division of the Supreme Court of New York, First Department
Jul 21, 2011
86 A.D.3d 477 (N.Y. App. Div. 2011)

Opinion

Nos. 4808, 4808A.

July 21, 2011.

Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered June 7, 2010, dismissing the complaint, unanimously reversed, on the law, the judgment vacated, and plaintiff awarded summary judgment on its claims for breach of contract and contractual indemnification in the principal sum of $1,325,000, against defendants jointly. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered May 27, 2010, which denied plaintiffs motion for summary judgment and granted defendants' cross motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Carter Ledyard Milburn LLP, New York (Jeffrey S. Boxer of counsel), for appellant.

Nixon Peabody LLP, New York (Abigail T. Reardon of counsel), for respondents.

Before: Concur — Andrias, J.P., Saxe, Catterson, Abdus-Salaam and Manzanet-Daniels, JJ.


The parties' agreement provided for defendant purchaser 45 John Mezzanine, LLC to make an "Additional In Kind Payment Following Closing" to plaintiff seller of either two condominium units or cash. The agreement stated that the parties "shall" enter into contracts of sale for the purchase of the condominium units by a certain date. Although similar mandatory language requiring the execution of further agreements, coupled with a deadline, has been held to constitute a condition precedent requiring strict compliance before a further obligation would arise ( see IDT Corp. v Tyco Group, S.A.R.L., 13 NY3d 209), it is evident that defendant's obligation to make the cash payments that were due if the two units were not transferred was not contingent on execution of the contracts for sale of those units. Rather, the agreement evinces an intent that plaintiff was to be further compensated after the closing by either conveyance of the two units or payment of additional money.

In view of the foregoing, it is unnecessary to address the parties' contentions regarding frustration of the condition and waiver. We find their other contentions unavailing.


Summaries of

Collegiate Asset Mgt. v. 45 John Mezzanine

Appellate Division of the Supreme Court of New York, First Department
Jul 21, 2011
86 A.D.3d 477 (N.Y. App. Div. 2011)
Case details for

Collegiate Asset Mgt. v. 45 John Mezzanine

Case Details

Full title:COLLEGIATE ASSET MANAGEMENT CORP., Appellant, v. 45 JOHN MEZZANINE, LLC…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jul 21, 2011

Citations

86 A.D.3d 477 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 5980
926 N.Y.S.2d 897