Collegiate Asset Mgt. Corp. v 45 John Mezzanine, LLC

Collegiate Asset Mgt. Corp. v 45 John Mezzanine, LLC 2011 NY Slip Op 05980 Decided on July 21, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 21, 2011
Andrias, J.P., Saxe, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.
602971/09 4808A

[*1]4808-Collegiate Asset Management Corp., Plaintiff-Appellant,

v

45 John Mezzanine, LLC, et al., Defendants-Respondents.



 
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.

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 plaintiff's motion for summary judgment and granted defendants' cross motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

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 [2009]), 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.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 21, 2011 [*2]

CLERK