893 Bway LLC v. Warman Enterprises

90 A.D.3d 578, 934 N.Y.2d 805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2011
• Status: Published

Opinion

In this action arising from a failed contract for the sale of real property, plaintiff purchaser alleges that it was entitled to cancel the contract based on a hazardous condition caused by defendant seller. Plaintiff claims that defendant removed underground oil tanks, after the execution of the contract, in violation of its contractual obligation to maintain the premises “as is” and in “their present condition.” On its motion, defendant submitted a contractor’s report which found evidence of oil contamination and made remediation recommendations. Defendant’s conclusory claim that it corrected the condition at a cost of approximately $5,000 is not supported by documentary evidence, lacks probative value, and is insufficient to establish entitlement to judgment as a matter of law. Similarly, plaintiff on the record failed to present a prima facie showing entitling it to summary judgment. Concur — Mazzarelli, J.P., Friedman, Catterson, Renwick and Freedman, JJ.