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DeMarrais v Swinton 2007 NY Slip Op 34133(U) November 29, 2007 Supreme Court, Nassau County Docket Number: 5560-06/ Judge: James P. McCormack Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Short Form Order

SUPREME COURT - ST ATE OF NEW YORK TRIAL TERM. PART 51 NASSAU COUNTY

PRESENT:

Honorable James P. McCormack
Acting Justice of the Supreme Court
RONALD DEMAIS and LARY DAVIS,

Plaintiff,
Index No.

015560/06

-against-

MELISSA SWINTON and ROBERT SWINTON and "JOHN DOE #1" THROUGH john doe #10" the last names being fictitious and unknown to the plaintiff's the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint,
Defendants.

Motion Submitted: 9/5/07

Motion Sequence: 001

The following papers read on this motion:

Notice of Motion........................................................
Answering Papers............................................ ......... ..

Reply.......................................................................... . Briefs: Plaintiff s/Petitioner ' s........................................ Defendant' s Respondent' s................ .............. ...............

Plaintiffs Ronald DeMarrais and Lar Davis move this court for an order pursuant
to CPLR

3212 granting plaintiffs summary judgment on their claims;

dismissing

defendants counterclaims with prejudice; appointing a referee for purposes of

computing the

total sum due and owing to the plaintiffs; and to amend the caption excising defendants John

Doe # 1 through John Doe # 10. Defendants oppose the plaintiffs motion.

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This action was commenced by the service of a Summons and Complaint and the
filing of a Notice of Pendency by plaintiff.
On or about June 13 , 2002 , plaintiffs and defendants entered into a Residential

Contract of Sale (" contract" ) in which the plaintiffs agreed to purchase and the defendants
agreed to sell the premises located at 625 Derby Drive East , Oceanside

, New York. Pursuant

to the contract , the plaintiffs deposited with defendant's attorney, as escrowee

, the sum of

Sixty Thousand ($60, 000. 00) Dollars, as the down payment ofthe purchase price. Pursuant

to the Rider to the contract , the down payment was paid to the defendants and in exchange

they executed Note and Mortgage in the sum of Sixty Thousand ($60

000. 00) Dollars which

the plaintiffs attorney, who is also a plaintiff in this action was supposed to hold in escrow.
The Rider provided; " In

the event Sellers default , said mortgage may be recorded against

the subject propert"

By a letter dated August 7 , 2002 , plaintiff Davis requested a termination of the
contract because; " at the time the Contract was entered into

, I had envisioned a use for the

premises which is prohibited by the covenants and restrictions . Thereafter, by a letter dated

October 15, 2002 , plaintiff Davis demanded defendant's attorney; "

amend the Contract to
approval

make the transaction subject to the Purchaser

s abilty to obtain final conditional

of an eight (8) lot subdivision within 18 months of the date of the amendment" or he would
demand the down payment be returned to his office. He fuher threatened that ifthe changes

to the contract were not made before November 1, 2002 he would fie the mortgage which
had been executed by the defendants.

Defendant's attorney wrote to the plaintiff and advised

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him that the defendants were under no obligation to amend the contract , and that Davis had

an obligation as a fiduciary to hold the Mortgage in escrow. The correspondence between
the two attorneys was provided as Exhibits to Defendant's Affidavit in Opposition.

Although the defendants do acknowledge the fact that the plaintiffs had discussed
their idea of constructing additional single family residences on the premises , they maintain
that they made no representations regarding if and how the premises could be developed
, and

they were under no duty to advise the plaintiffs as to whether their propert
developed in accordance with the way in which the plaintiffs had " envisioned" the

could be

propert.

Plaintiff Davis claims he and plaintiffDeMarias " intended to purchase the propert

for purposes of developing the propert with additional and other residential strctures

communicated this fact to the seller and counsel for the seller before the : contract was
signed" ; and he "would not have entered into the agreement to purchase the propert if

there

were covenants and restrictions against development" . The contract is silent with regard to their plans to develop the propert
and whether

or not they would take the propert subject

to covenants and restrictions.

When the terms of a written contract are clear and unambiguous, the intent of the
paries must be found withing the four corners ofthe
contract ,

giving practical interpretation
(see Correnti

to the language employed and the parties ' reasonable expectations
Properties, LLC, 38 AD3d 588, quoting Costello

Allstate

Casale 281 AD2d 581 citing, W W W

Assocs.

Del Col 174 AD2d 725

affd'

79 NY2d 1016). The rule is well settled that a court

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may not , under the guise of interpretation , make a new contract for the parties if to do so
would contradict the clearly expressed language of the contract (see, Rodolitz

Neptune

Paper Prods. 22 NY2d 383). The language suggested by the plaintiff in his October 15

2002 letter is precisely the tye

of language that could have obviated the need for this

litigation had it been included in the contract from the beginning. That language was not
included in the contract and was not agreed to by the paries in the writing that the court is

now asked to consider.
Where as here , the terms of a real estate contract are unambiguous , evidence outside
the four corners ofthe document is inadmissible to add or var
d.

the

writing (

W W W Assocs.

at 162) In the present matter , paragraph 28(a) ofthe Contract specifically states:

All prior understandings , agreements , representations and

waranties , oral or written , between Seller and Purchaser are merged in this contract. It completely expresses their full agreement and has been entered into after full investigation
neither part
relying

upon any statement made by anyone else

that is not set forth "in this contract."

The plaintiffs and their attorney had an obligation to research this matter and investigate the

records of the County Clerk to determine if there were any covenants or restrictions that
would prevent them from developing the propert as they had " envisioned" .
For whatever

reason that does not appear to have been done by plaintiff s attorney. It is also unclear to the

court , after painstakingly reviewing the title report anexed to the plaintiffs Notice

of

Motion as Exhibit 8, whether

the covenants and

restrictions actually prevented the

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development of the premises or if they merely made the development more laborious and
time consuming.

In addition , after examining the contract , it appears to the court that the contract was
silent on the issue of existing covenants and restrictions that would prevent the development

ofthe premises. Again , plaintiffs attorney failed to negotiate the proper language into the
contract. Although plaintiff Davis argues the covenants and restrictions are defects on title
they are simply exceptions to title and they do not render the premises unarketable. As

such , it appears title has remained marketable and the defendants maintain that they have
been ready, wiling, and able to convey marketable title.

Defendants maintain that it was the plaintiffs who chose not to proceed with the
closing and that they failed to

fulfill their obligation under the contract.

In addition

defendants state plaintiff Davis had no right to record the mortgage and that he breached his
fiduciar duty as an

escrow agent by recording the Mortgage.

The plaintiff s have failed to meet their burden of making a prima facie showing of
entitlement to summary judgment as a matter of law (see, Alvarez v.

Prospect Hasp. , 68

2d 320;

Winegrad

New York Univ. Med. Ctr. 64 N.

2d 851). The proponent of a

motion for summar judgment must tender evidence sufficient to eliminate any material issue
of fact (Zuckerman

City of New York 49 NY2d 557). In the present case , both sides claim

the other defaulted in this matter. As a result , questions of fact remain as to whether a

covenant or restriction is a defect on title which would render title unmarketable

and

therefore undeliverable under the terms of the contract; and whether or not the plaintiff

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agreed to take the propert subject to covenants and restrictions given the fact that the
contract was silent to that issue. These are significant issues of fact that remain unanswered
and it appears this matter would benefit from continued pre- trial discovery and depositions.
Accordingly, plaintiffs

motions for summar judgment; to strike the defendant'

counterclaims , and appointing a referee for computation are all denied. Plaintiff s remaining

motion to amend the caption to remove defendants John Doe # 1 through John Doe # 10 is
granted. The amended Caption shall read as follows:

SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 51 NASSAU COUNTY
PRESENT:

Honorable James P. McCormack
Acting Justice of the Supreme Court
x.
RONALD DEMAIS and LARY DAVIS,

Plaintiff,
-againstMELISSA SWINTON and ROBERT SWINTON
Defendants.

Index No. : 015560/06

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. .

The foregoing constitutes the decision and order ofthis court.

Dated: November

29 2007

Mineola, N. Y.

.-r
DEC 1 6

. r:
2007

NAS :)i
COUNTY CU:.HK S

UNTY
OFFIC



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