Kirkwall Corp. v. Sessa

Appellate Division of the Supreme Court of New York

Kirkwall Corp. v. Sessa

39 A.D.2d 185, 333 N.Y.S.2d 108, 1972 N.Y. App. Div. LEXIS 4377

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

DecidedJune 8, 1972

StatusPublished

Cited by1 cases

This text of 39 A.D.2d 185 (Kirkwall Corp. v. Sessa) 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

Kirkwall Corp. v. Sessa, 39 A.D.2d 185, 333 N.Y.S.2d 108, 1972 N.Y. App. Div. LEXIS 4377 (N.Y. Ct. App. 1972).

Pincite

Opinions

Steuer, J.

In December, 1965 the plaintiff contracted to buy, and the defendant to sell, a parcel of vacant land in Nassau County. Title never closed and plaintiff brought this action. The first cause of action seeks damages for breach of the contract to sell and the second seeks the return of the deposit paid on account of the purchase price. Special Term dismissed the first cause of action on the ground that the contract specifically limited any damages for failure of title to close for lack of a marketable title to the deposit. We agree with that disposition. Special Term also granted summary judgment on the second cause of action. With that we disagree.

The property consisted of a vacant tract in the Village of Lake Success bounded on three sides by public streets — on the west by University Place, on the north by Northern Boulevard, and on the east by Lakeville Road. Before the adjourned date for the closing of title the Village of Lake Success erected a barrier across University Place at the point where that street meets Northern Boulevard. The position of the barrier is practically a continuation of the northern boundary of the property. Its effect is to prevent traffic going north along University Place from crossing or entering Northern Boulevard and also to prevent traffic on Northern Boulevard from turning south into University Place. The propriety of the village to erect such a barrier in pursuance of its right and duty to regulate traffic is not disputed.

Plaintiff’s claim is that the barrier, or the restriction of traffic resulting from it, prevents access to the property. The difficulty with that claim is that the barrier does no such thing. An individual on any part of the property could proceed from the property to each and every public street and to every inch of those public streets exactly as he could before the barrier was erected; and, conversely, an individual on any of those public streets has the same access to the property.

The net result of the action of the village which found expression in the placing of the barrier was, to a degree, to make access to the property in question from a distance more difficult or burdensome. The same condition could result if a highway miles from the property were rerouted or closed. Oases based upon a showing that the purchaser was denied access to a street by virtue of appropriation of a highway fronting on the property have no application. And of course a purchaser may specify in the contract that a particular street remain open for a dis[187]*187tance beyond the property (Irwin v. Lido Realty Corp., 250 N. Y. 310). A failure in this regard is a breach of the condition of the contract rather than the presentation of an unmarketable title.

A situation very similar in effect, namely, a change in grade in a bordering street taking effect between the date of contract and closing, has been held not to render the title unmarketable (Sperling v. Title Guar. & Trust Co., 227 App. Div. 5, affd. 252 N. Y. 613), even though the consequences were quite serious. The same is true when the change of grade has been under consideration by the municipal authorities but not ordered until after title passed (Mafetone v. Forest Manor Homes, 34 A D 2d 566), or where the city has allowed the abutting street to be maintained at a grade not conforming to that fixed under an agreement that the owner will conform the grade upon demand (Laba v. Carey, 29 N Y 2d 302). It is difficult to see how a title that would be marketable despite such significant changes in the abutting streets would become unmarketable if the traffic regulations in regard to that street were altered.

The order entered July 21,1971 should be modified on the law to deny summary judgment to the plaintiff and, as so modified, affirmed, and the judgment entered thereon on August 26, 1971, vacated with costs to defendant-appellant.

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Steuer, J.

In December, 1965 the plaintiff contracted to buy, and the defendant to sell, a parcel of vacant land in Nassau County. Title never closed and plaintiff brought this action. The first cause of action seeks damages for breach of the contract to sell and the second seeks the return of the deposit paid on account of the purchase price. Special Term dismissed the first cause of action on the ground that the contract specifically limited any damages for failure of title to close for lack of a marketable title to the deposit. We agree with that disposition. Special Term also granted summary judgment on the second cause of action. With that we disagree.

The property consisted of a vacant tract in the Village of Lake Success bounded on three sides by public streets — on the west by University Place, on the north by Northern Boulevard, and on the east by Lakeville Road. Before the adjourned date for the closing of title the Village of Lake Success erected a barrier across University Place at the point where that street meets Northern Boulevard. The position of the barrier is practically a continuation of the northern boundary of the property. Its effect is to prevent traffic going north along University Place from crossing or entering Northern Boulevard and also to prevent traffic on Northern Boulevard from turning south into University Place. The propriety of the village to erect such a barrier in pursuance of its right and duty to regulate traffic is not disputed.

Plaintiff’s claim is that the barrier, or the restriction of traffic resulting from it, prevents access to the property. The difficulty with that claim is that the barrier does no such thing. An individual on any part of the property could proceed from the property to each and every public street and to every inch of those public streets exactly as he could before the barrier was erected; and, conversely, an individual on any of those public streets has the same access to the property.

The net result of the action of the village which found expression in the placing of the barrier was, to a degree, to make access to the property in question from a distance more difficult or burdensome. The same condition could result if a highway miles from the property were rerouted or closed. Oases based upon a showing that the purchaser was denied access to a street by virtue of appropriation of a highway fronting on the property have no application. And of course a purchaser may specify in the contract that a particular street remain open for a dis[187]*187tance beyond the property (Irwin v. Lido Realty Corp., 250 N. Y. 310). A failure in this regard is a breach of the condition of the contract rather than the presentation of an unmarketable title.

A situation very similar in effect, namely, a change in grade in a bordering street taking effect between the date of contract and closing, has been held not to render the title unmarketable (Sperling v. Title Guar. & Trust Co., 227 App. Div. 5, affd. 252 N. Y. 613), even though the consequences were quite serious. The same is true when the change of grade has been under consideration by the municipal authorities but not ordered until after title passed (Mafetone v. Forest Manor Homes, 34 A D 2d 566), or where the city has allowed the abutting street to be maintained at a grade not conforming to that fixed under an agreement that the owner will conform the grade upon demand (Laba v. Carey, 29 N Y 2d 302). It is difficult to see how a title that would be marketable despite such significant changes in the abutting streets would become unmarketable if the traffic regulations in regard to that street were altered.

The order entered July 21,1971 should be modified on the law to deny summary judgment to the plaintiff and, as so modified, affirmed, and the judgment entered thereon on August 26, 1971, vacated with costs to defendant-appellant.

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39 A.D.2d 185, 333 N.Y.S.2d 108, 1972 N.Y. App. Div. LEXIS 4377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkwall-corp-v-sessa-nyappdiv-1972.

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