Wilkinson v. Sukiennik

119 A.D.2d 1011, 1986 N.Y. App. Div. LEXIS 55956

Opinion

— Motions for reargument or for clarification granted to the extent of amending the memorandum decision dated January 24, 1986 (116 AD2d 987, 988) by deleting the last sentence and inserting in place thereof the following: "Unless the contract is terminated by notice of rescission, plaintiff is entitled to a deed of the property upon tendering the balance of the purchase price, without interest, and should the contract be rescinded, plaintiff is entitled to the return of $15,000, without interest. Defendant Hoelscher, as assignee of the rights under the contract of sale, has express authority to rescind the contract. This right to rescind takes precedence over plaintiff’s right to tender the balance of the purchase price, and may be exercised at any time before closing. Except for the provision of the order of February 25, 1985, from which no appeal has been taken, plaintiff is not obligated to pay rent for the period of his occupancy because the contract makes no provision for rental payments. Judgment is declared accordingly”, and by amending the adjudging paragraph of the remittitur order heretofore entered January 24, 1986, accordingly. Present— Dillon, P. J., Denman, Boomer, Green and O’Donnell, JJ. (Two motions.)