Ahmed v. Jack G. Smith Corp.

Appellate Division of the Supreme Court of New York

Ahmed v. Jack G. Smith Corp.

66 A.D.3d 1467, 885 N.Y.S.2d 695

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 2, 2009

StatusPublished

This text of 66 A.D.3d 1467 (Ahmed v. Jack G. Smith Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ahmed v. Jack G. Smith Corp., 66 A.D.3d 1467, 885 N.Y.S.2d 695 (N.Y. Ct. App. 2009).

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Opinion

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Timothy J. Drury, J.), entered October 15, 2008 in a breach of contract action. The order and judgment granted defendant’s motion and dismissed the complaint.

It is hereby ordered that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking specific performance of a contract for the sale of property, alleg[1468]*1468ing that defendant had improperly refused to convey title to the property to plaintiff. Supreme Court properly granted the motion of defendant to dismiss the complaint based on the affirmative defense that, by its express terms, the contract was not binding because it was not signed by the escrow agent, thus rendering specific performance unavailable (see King v Littman, 22 AD3d 917, 919 [2005]; cf. Manning v Michaels, 149 AD2d 897, 898 [1989]). Contrary to plaintiffs contention, there is no evidence in the record before us that defendant waived the contractual provision requiring the signature of the escrow agent.

Present—Martoche, J.P, Centra, Fahey, Peradotto and Green, JJ.

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Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Timothy J. Drury, J.), entered October 15, 2008 in a breach of contract action. The order and judgment granted defendant’s motion and dismissed the complaint.

It is hereby ordered that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking specific performance of a contract for the sale of property, alleg[1468]*1468ing that defendant had improperly refused to convey title to the property to plaintiff. Supreme Court properly granted the motion of defendant to dismiss the complaint based on the affirmative defense that, by its express terms, the contract was not binding because it was not signed by the escrow agent, thus rendering specific performance unavailable (see King v Littman, 22 AD3d 917, 919 [2005]; cf. Manning v Michaels, 149 AD2d 897, 898 [1989]). Contrary to plaintiffs contention, there is no evidence in the record before us that defendant waived the contractual provision requiring the signature of the escrow agent.

Present—Martoche, J.P, Centra, Fahey, Peradotto and Green, JJ.

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Bluebook (online)

66 A.D.3d 1467, 885 N.Y.S.2d 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ahmed-v-jack-g-smith-corp-nyappdiv-2009.

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