Mazzochetti v. Cassarino

2 Citing cases

  1. Soggs v. Crocco

    247 A.D.2d 887 (N.Y. App. Div. 1998)   Cited 14 times
    Affirming damages award in lieu of specific performance when performance had become impossible

    While it may have been unreasonable for the parties not to provide for the contingency that the FCC would decline to become involved ( see, P.K. Dev. v. Elvem Dev. Corp., 226 A.D.2d 200, 201-202), it is not for the court to rewrite the agreement to correct their oversight ( see, Firtell v. Crest Bldrs., 159 A.D.2d 352; Niemann v. Cohen, 22 A.D.2d 770, 771). By appointing a Referee, the court imposed a remedy "not within the intent or understanding of the parties when the bargain was made" ( Gotthelf v. Stranahan, 138 N.Y. 345, 351; see, Mazzochetti v. Cassarino, 49 A.D.2d 695). Because specific performance of the agreement is not possible, the parties are left to whatever legal or equitable remedies they may have ( see, Gotthelf v. Stranahan, supra, at 351-352; Ipar Realty Corp. v. Herbert Constr. Co., 192 A.D.2d 639, 640-641).

  2. Michaels v. Hartzell

    73 A.D.2d 1056 (N.Y. App. Div. 1980)   Cited 6 times

    Under these circumstances it cannot be said that there was "both an occasion and a duty to speak," or that "the omission to speak, upon opportunity being presented, was intentional or in negligent disregard of the plain dictates of conscience and justice." (Thompson v Simpson, 128 N.Y. 270, 291; see Rothschild v Title Guar. Trust Co., 204 N.Y. 458, 461-462; Mazzochetti v Cassarino, 49 A.D.2d 695; Coppola v Fredstrom, 45 A.D.2d 857.) The active participation in the transaction by the party to be estopped, present in Farr v Newman ( 18 A.D.2d 54, 56-58) and relied upon by plaintiff-respondent is lacking.