Weeks v O'Hara

[*1] Weeks v O'Hara 2005 NY Slip Op 50817(U) Decided on March 30, 2005 Supreme Court, Broome County Rumsey, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 30, 2005
Supreme Court, Broome County

Warren W. Weeks, Jr. and LAURIE J. WEEKS, Plaintiffs,

against

Richard C. O'Hara, Defendant.



2004-1266



Butler & Butler, P.C.

By:Matthew C. Butler, Esq.

Attorneys for Plaintiffs

Vestal Professional Annex

231-241 Main Street

Vestal, New York 13850

Aswad & Ingraham

By:Angelina Cutrona Beehm, Esq.

Attorneys for Defendant

46 Front Street

Binghamton, New York 13905

Phillip R. Rumsey, J.

Plaintiffs purchased a parcel of real property from defendant on August 1, 2003, and discovered thereafter that the septic system did not operate properly. They now seek to recover for defendant's alleged breach of an agreement to have the septic system repaired and reinspected within 60 days after the closing. Defendant moves for summary judgment dismissing the complaint, on the ground that no binding agreement was ever made to repair or reinspect the septic system after closing. Defendant contends that the terms of the parties' contract of sale, including any alleged oral modification of that contract imposing a duty to repair or reinspect the septic system, would have merged into the deed when the property was conveyed, and therefore plaintiff's breach of contract claim must fail.

"As a general rule, 'prior negotiations and agreements regarding the sale of land merge into and are extinguished by the deed of conveyance'" (1455 Washington Ave. Assocs. v Rose and Kiernan, Inc., 260 AD2d 770, 771, quoting Alexy v Salvador, 217 AD2d 877, 878). No merger will occur, however, where it is clear that the parties did not intend that result, where the obligation could not be performed before closing, or where the agreement in question concerns a collateral matter, "not connected with the title, possession or quantity of land" (Alexy v Salvador, 217 AD2d 877, 878). So, for example, an agreement to remodel an existing house, in conformance with detailed plans and specifications, has been held to be "collateral" to the contract to sell the real property on which the house is located (see, Ting-Wan Liang v Malawista, 70 AD2d 415, 419 [1979]). Representations as to the nature and condition of the property being sold, on the other hand, are generally viewed as sufficiently related to the contract's fundamental purpose that they will merge in the conveyance, when the sale is consummated (see, Summit Lake Assocs. v Johnson, 158 AD2d 764, 766 [1990]).

Here, two promises were allegedly made, and breached, by defendant - to repair the defective septic system, and to have it re-inspected thereafter. The parties were all aware, when the initial septic test was failed, that the system was not "up to code". Defendant concedes, in his initial affidavit tendered in support of the present motion, that he then "agreed to pay for the repair of the system" (Affidavit of Richard O'Hara, dated October 12, 2004, ¶ 4), and "contacted Suburban Septic & Excavating Services, Inc. to do the repair" (id., at ¶ 5). Viewed in the light most favorable to the plaintiff, the evidence at least raises a factual question as to whether defendant's oral agreement to repair the system was thereafter confirmed, as required by the contract, "by means of correspondence between attorneys" (Contract, ¶ 17), to wit, the letter of plaintiffs' counsel, dated July 8, 2003, setting forth his client's understanding of defendant's undertakings ("to have the septic system repaired at his cost and have the system re-inspected in 60 days"), to which defendant's attorney never objected (Affidavit of Stephen B. Atkinson, Esq., dated November 16, 2004, ¶ 4).

In the court's view, defendant's admitted promise to "repair" the system was neither a representation about the condition of the septic system, nor was it a promise that the system would be in a particular condition, or free from defects, at the time of closing. Any such assertion, going to the "nature" of the property conveyed, would have merged into the deed when [*2]it was given. The agreements at issue, however, are merely collateral agreements, to take certain specified actions, performance of which is entirely separate from the actual conveyance of the property itself (see, Yakisch v Relocation Realty Serv. Corp., 89 Misc 2d 410, 411). Stated differently, they were not promises intended to be fulfilled by the transfer of a deed at closing; rather, they were promises to undertake additional obligations: to arrange for the repair of the septic system (or pay the cost of doing so), and for its subsequent reinspection. Accordingly, they were not extinguished by the delivery of a deed at closing.

If a factfinder were to conclude that these additional, collateral promises were made and confirmed as required under the terms of the contract, and that defendant did not perform the additional obligations he assumed,[FN1] plaintiffs would be entitled to recover the damages they incurred as a result. Defendant has not demonstrated, prima facie, his right to judgment as a matter of law, and therefore the motion must be, and hereby is, denied.

This decision shall constitute the order of the court.

Dated: March 30, 2005

Cortland, New York

____________________________

HON. PHILLIP R. RUMSEY Supreme Court Justice

Footnotes

Footnote 1: Even if the alleged promises were made and properly confirmed, so as to constitute binding additions to the original contract, factual questions remain as to the scope of defendant's resulting obligation (he contends that the only "repair" he agreed to undertake was to remedy the problem of standing water in the backyard), and whether he did what was promised (see, Affidavit of Richard C. O'Hara, dated January 26, 2005).