Schwartz v Cilmi & Assoc. PLLC

Schwartz v Cilmi & Assoc. PLLC 2007 NY Slip Op 05556 [41 AD3d 317] June 26, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Jonathan Schwartz, Appellant,
v
Cilmi & Associates PLLC et al., Respondents.

—[*1] Goldberg, Rimberg & Friedlander, PLLC, New York (Brad Coven of counsel), for appellant.

Cilmi & Associates PLLC, New York (Noah L. Pusey of counsel), for respondent.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered February 1, 2007, which, in an action to recover the down payment on a contract for the purchase of real property, insofar as appealed from, denied plaintiff's cross motion for summary judgment, unanimously affirmed, with costs.

At issue is the meaning of language in the contract that gives plaintiff buyer the right to cancel the contract on written notice to defendant seller at any time and "for any reason" during a due diligence contingency period. Plaintiff reasonably interprets this language as not requiring him to state any reason at all for cancelling the contract. However, that is not the only reasonable interpretation. Given the placement of plaintiff's right to cancel "for any reason" in a "due diligence contingency" clause that gives plaintiff a right of inspection that, like the right of cancellation, must be exercised within a defined "due diligence contingency period," the "for any reason" language can also be reasonably interpreted as requiring plaintiff to give a reason for cancelling that is rationally related to his right of inspection. The disputed language is ambiguous and, on this record, its meaning cannot be determined as a matter of law (see Blue Jeans U.S.A. v Basciano, 286 AD2d 274 [2001]). Concur—Tom, J.P., Mazzarelli, Saxe, Williams and Malone, JJ.