R&T Holding Corp. v Commack Realty, Inc.

[*1] R&T Holding Corp. v Commack Realty, Inc. 2006 NY Slip Op 52230(U) [13 Misc 3d 138(A)] Decided on October 27, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2005-1953 S C.

R&T Holding Corp., Respondent,

against

Commack Realty, Inc., Appellant.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered October 25, 2005. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, reversed without costs and defendant's cross motion for summary judgment dismissing the complaint granted.

Plaintiff instituted this action for consequential damages arising out of defendant's alleged breach of a contract whereby plaintiff agreed to purchase property from defendant. The contract was not contingent upon mortgage financing. After the "on or about" date set in the contract for closing of title passed, defendant notified plaintiff of its intent to fix a "law date." Following negotiations between the parties, a date for closing was agreed upon, which defendant stated was deemed "time of the essence." Plaintiff, shortly before the scheduled closing, notified defendant that it was unable to close on said date due to a lack of funds. Defendant then advised plaintiff that due to plaintiff's failure to close title on the agreed date, it was rescinding the contract. In addition, defendant stated that it was willing to return the down payment and reimburse plaintiff for its out-of-pocket expenses with regard to the premises together with the cost of a survey. After receiving a check representing the return of the down payment, plaintiff cashed same and provided defendant, as requested, with documentary proof of its out-of-pocket expenses. Defendant sent plaintiff a check in the amount [*2]requested, which plaintiff also cashed. Under the circumstances, plaintiff's acceptance and encashment of the checks constituted an accord and satisfaction (see Gimby v Frost, 84 AD2d 806 [1981], appeal dismissed 56 NY2d 593 [1982]; cf. Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 598 [1984]). In view of the
foregoing, the order of the court below, insofar as it denied defendant's cross motion for summary judgment, should be reversed and defendant's cross motion for summary judgment dismissing the complaint granted.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: October 27, 2006