Boss Realty Co., LLC v Bogopa-Jerome, LLC

Boss Realty Co., LLC v Bogopa-Jerome, LLC 2015 NY Slip Op 03028 Decided on April 9, 2015 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 April 9, 2015
Gonzalez, P.J., Mazzarelli, Saxe, Clark, JJ.
14763 310351/10 307966/11

[*1] Boss Realty Company, LLC, Plaintiff-Respondent,

v

Bogopa-Jerome, LLC, Defendant-Appellant. Boss Realty Company, LLC, et al., Plaintiffs-Respondents, Bogopa Service Corp., Defendant-Appellant.

Harfenist Kraut & Perlstein, Lake Success (Charles Horn and Andrew Lang of counsel), for appellant.

Moss & Kalish, PLLC, New York (Mark L. Kalish of counsel), for respondents.

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered February 20, 2014, in favor of plaintiff in the first action, and in favor of plaintiff Boss Realty Company, LLC in the second action, unanimously reversed, on the law, without costs, the judgment vacated, and the complaints dismissed.

We perceive no basis for reversing the trial court's findings, after a nonjury trial, that defendant Bogopa-Jerome cancelled its contract to purchase real estate from Boss in good faith and that it did not deliver an environmental report to Boss at the contract signing; those findings were based in part on assessments of the credibility of witnesses (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]; Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]).

However, the court erred in finding that Bogopa-Jerome's failure to deliver the environmental report constituted a waiver of its right to cancel the contract (see e.g. Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]; EchoStar Satellite L.L.C. v ESPN, Inc., 79 AD3d 614, 617-618 [1st Dept 2010]).

The court also erred in finding that Bogopa-Jerome's failure to deliver the environmental report constituted a failure of notice; the contract does not so provide (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 476 [2004]).

Section 6 of the rider to the contract did not give Boss the right to sue Bogopa-Jerome for an adjournment fee if Bogopa-Jerome failed to pay the fee; it provided for a different remedy.

Defendants' argument that Boss was not entitled to judgment against defendant Bogopa Service because Boss was not a holder in due course of Bogopa Service's check is unavailing. [*2]The holder in due course doctrine is not applicable to the instant situation (see generally Hartford Acc. & Indem. Co. v American Express Co., 74 NY2d 153, 158-159 [1989]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 9, 2015

DEPUTY CLERK