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July 26, 2000


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


The instant action was commenced by Albert and Wendy Greenfield (plaintiffs) against Alan Shapiro and Marion Greif (defendants) seeking a $79,900 down payment after the parties failed to close on the purchase of plaintiffs' house. Plaintiffs now move pursuant to Fed.R.Civ.P. 56 for summary judgment. For the reasons that follow, plaintiffs' motion is granted.


In the spring of 1998, plaintiffs listed their home at 40 Pond Hill Road in Chappaqua, New York (the "Property") with Holmes and Kennedy, a real estate brokerage firm in Chappaqua. Plaintiffs state that they provided Holmes and Kennedy with four different plans and surveys of the Property, including a topographical map, and made these plans available to prospective purchasers for inspection and photocopying. (A. Greenfield Aff. at ¶ 4.)

On August 11, 1998, plaintiffs and defendants entered into a written contract of sale (the "Contract") pursuant to which plaintiffs agreed to sell the Property to defendants for $799,000. At the signing of the Contract, defendants delivered a downpayment of 79,900, which was to be held in escrow by plaintiffs' then-counsel Susan Gulotta. The Contract provided: "If Purchaser defaults hereunder, Seller's sole remedy shall be to receive and retain the Downpayment as liquidated damages. . . ." (A. Greenfield Aff., Ex. A, ¶ 23(a).) During the negotiation of the terms of the Contract, defendants were represented by the law firm of Banner and Greif, but prior to the closing date, defendants changed attorneys to Ian Polow.

Shapiro states that he told Albert Greenfield that having a large pool in a private backyard was Greif's "sine qua non in selecting a home," and that during a visit to the Property, Albert Greenfield told him that the rear boundary line extended "`way back into the woods.'" (Shapiro Aff. at ¶ 3.) According to Shapiro, on a subsequent visit to the Property, Albert Greenfield escorted him into the woods beyond the cleared backyard to show him how deep into the woods the property line purportedly extended. (Id. at ¶ 5.) Greif states that she discussed with Wendy Greenfield her desire to build a swimming pool in the backyard, and that Albert Greenfield agreed with her that the backyard would be a perfect place for a pool. (Greif Aff. at ¶ 3.)

Greif states that ten days after the Contract was executed, she met with a contractor to design a swimming pool to be built in the backyard of the Property. (Greif Aff. at ¶ 4.) However, the contractor told her that it appeared to him that about one-half of the area she believed constituted the backyard was not part of the property to be conveyed to them. (Id.) Grief and Bickler then met with plaintiffs' surveyor, who confirmed what the contractor had told Greif. (Id. at ¶ 5.) Bickler states in her affidavit that the area Albert Greenfield described as the Property's backyard was dissected by a boundary line that cut the purported backyard in half. (Bickler Aff. at ¶ 8.)

In the Contract, the parties agreed that the closing would take place at 10 a.m. "[o]n or before 8/31/98" in Gullotta's offices. (A. Greenfield Aff., Ex. A, ¶ 15.) On August 27, 1998, Polow wrote to Gullotta requesting that the closing be adjourned for a month to allow title searches to be completed and to allow time for a new survey of the Property. (Complt., Ex. B, Letter from Polow to Gullotta of 8/27/98.) After Polow objected to a closing date of September 30, Gullotta wrote to Polow that the closing would be adjourned to October 5, 1998 with "time of the essence," and that her clients would be "ready, willing and able to transfer insurable title to the premises" to defendants. (Id, Ex. F, Letter from Gullotta to Polow of 9/29/98.) There was no closing on October 5, although Gullotta stated on the record that she had, ready to tender to defendants, a bargain and sale deed transferring title to the Property from plaintiffs to defendants and other closing documents. (A. Greenfield Aff., Ex. B.)

By letter dated June 9, 1999, Lowen Hankin, acting as counsel for plaintiffs, demanded delivery of the downpayment to plaintiffs. (Complt., Ex. G, Letter from Hankin to Gullotta of 6/9/99.) On August 3, 1999 defendants instituted an action in Supreme Court, Westchester County against plaintiffs, Gullotta as escrow agent, and Polow.

Wendy Greenfield states that "[a]t no time during their inspections of the Property, or prior to the execution of the Contract of Sale, did the Defendants ever ask me or my husband about the location for construction of a swimming pool at the Property, or otherwise indicate to us that their interest in purchasing the Property was pre-conditioned on their ability to construct a swimming pool at any particular location on the Property." (W. Greenfield Aff. at ¶ 11.) Gullotta also states in her affidavit that she was not advised of defendants' swimming pool condition prior to execution of the Contract. (Gullotta Aff. at ¶ 15.) Defendants' former counsel, Polow, testified that he was not advised that the construction of a swimming pool at a particular location on the Property was of importance to defendants. (Polow Dep. at 128.)


I. Summary Judgment Standard

Plaintiffs move for summary judgment pursuant to Fed.R.Civ.P. 56. Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issues of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The substantive law dictates which facts are ...

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