Albert & Kimmel v. Herman

276 A.D.2d 413, 714 N.Y.S.2d 288, 2000 N.Y. App. Div. LEXIS 10774

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 2000
• Status: Published

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered July 8, 1999, which, in an interpleader action by an escrow agent concerning the disposition of a down payment for a cooperative apartment, denied defendant seller’s motion for summary judgment and granted defendant buyer’s cross motion for summary judgment, unanimously affirmed, without costs.

The contract between the buyer and seller states that it may be modified only by a writing signed by the party to be charged. Viewing the submitted writings in a light most favorable to the seller, at best they show that the buyer agreed in principle to the coop’s demand to change the purchaser under the contract to a trust of which she was the beneficiary, but that change was subject to conditions that still had to be worked out. The first appearance of these conditions in a document is in a fax transmitted to the buyer’s attorney only three days before the closing, wherein, among other things, plaintiff was to personally guarantee the trust’s obligations to the coop and the trust was to permanently maintain six months’ maintenance as security. So far as appears, the next communication between the parties was at the closing, where the buyer justifiably refused to proceed on the ground that she never agreed to these conditions (see, Moss v Brower, 213 AD2d 215). Concur — Williams, J. P., Tom, Mazzarelli, Andrias and Buckley, JJ.