Izzo v Hoth

[*1] Izzo v Hoth 2005 NYSlipOp 51051(U) Decided on July 6, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: July 6, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-1369 S C

Arthur Izzo, Appellant,

against

Donald Hoth, Respondent.

Appeal by plaintiff from a small claims judgment of the Justice Court, Town of Riverhead, Suffolk County (R. Ehlers, J.), entered June 22, 2004, in favor of defendant dismissing the action.

Judgment unanimously affirmed without costs.

In this small claims action to recover buyer's costs of cleaning a property that buyer alleged was not turned over in broom clean condition as required by the contract of sale, a rider to the contract of sale had called for a 72-hour period, which the parties agree was to be computed from the time of closing, for defendant to deliver the premises vacant and in broom clean condition. At the closing, held on April 15, 2003, the parties entered into an agreement of possession stating, inter alia, that, in consideration of an escrow deposit and an amount to be assessed per day for any additional holding over, the buyers were "permitting the sellers to occupy the said premises up to and including the 18th day of April, 2003." The foregoing replaced the 72-hour provision in the rider to the contract of sale with a date certain, April 18, 2003, on which the sellers had to vacate. Because neither the agreement of possession nor the contract of sale defines a "day," the court below properly utilized the definition of a "day" found in General Construction Law § 19, as including "the time from midnight to midnight" (see Garelick v Rosen, 274 NY 64 [1937]).

Absent an express agreement to the contrary, the law does not recognize fractions of a "day" as deadlines for performance on that day (see Savino v Merchants Mut. Ins. Co., 44 NY2d 625, 628 [1978]). It is undisputed that in the early afternoon of April 18, 2003, when plaintiff insisted defendant vacate the property, which demand defendant acceded to, defendant was in the process of complying with the agreement of possession, having rented a dumpster for this purpose, and was actively working to clean and clear out the house and yard. In the [*2]circumstances, the court was entitled to find that plaintiff's insistence that defendant vacate the property forthwith operated to waive the contract requirement that the property be delivered in broom clean condition. [*3]
Accordingly, plaintiff is not entitled to recover the costs of his own performance to obtain this end (see 22 NY Jur 2d, Contracts § 325; Lindenbaum v Royco Prop. Corp., 165 AD2d 254 [1991]).
Decision Date: July 06, 2005