Bogaert v. Bartholomew

28 A.D.2d 814, 281 N.Y.S.2d 503, 1967 N.Y. App. Div. LEXIS 3683

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1967
• Status: Published

Opinion

Memorandum: Defendants should not be precluded from an opportunity to establish on a plenary trial all the circumstances surrounding the transaction between the parties from which there well may be derived the inference that time was contemplated by the parties to be of the essence of the contract. All concur, except Goldman, J., who dissents and votes to reverse and grant the motion, in the following Memorandum: The only question presented in this appeal is one of law. If the language of the purchase contract “ Transaction to be completed * * * on or before July 20, 1965” makes time of the essence, then appellants’ summary judgment motion was properly denied. If it does not, the delay in closing was occasioned by the respondents and appellants acted with all reasonable promptness once respondents furnished the required title documents, and appellants’ motion should have been granted. The rule of law enunciated in Ballen v. Potter (251 N. Y. 224, 228) “ that the mere designation of a particular date upon which a thing is to be done does not result in making that date the essence of the contract” has been uniformly followed (Wilco Corntr. Corp. v. Prywes, 29 Misc 2d 81, 82, affd. 14 A D 2d 929). The record presents no question of fact, the resolution of which should await a plenary trial, and appellants’ motion should have been granted. (Appeal from orders of Monroe Special Term, entered in Yates County, denying motion for summary judgment and denying motion to reargue said motion.) Present — Williams, P. J., Goldman, Henry, Del Vecehio and Marsh, JJ.