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Kopp v. Boyango

November 4, 2009

ALEKSANDER KOPP, ET AL., APPELLANTS,
v.
MARIANNE BOYANGO, RESPONDENT.



In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, (1) as limited by their brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated April 29, 2008, as, upon reargument, adhered to a prior determination in an order dated February 8, 2008, denying their motion for summary judgment on the complaint and granting the defendant's cross motion for summary judgment dismissing the complaint and awarding judgment on the defendant's counterclaim for liquidated damages, and (2) from a judgment of the same court dated May 7, 2008, which, upon the orders, dismissed the complaint and awarded the defendant the principal sum of $72,500 on the counterclaim.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON and LEONARD B. AUSTIN, JJ.

(Index No. 2501/06)

DECISION & ORDER

ORDERED that the appeal from the order dated April 29, 2008, is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, upon reargument, the order dated February 8, 2008, is vacated, the plaintiffs' motion for summary judgment on the issue of liability is granted, the defendant's cross motion for summary judgment is denied, and the order dated April 29, 2008, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The defendant, as seller, entered into a contract of sale of residential property dated April 15, 2005, with the plaintiffs, as purchasers, for a sales price of $725,000. The closing was to take place on or about November 1, 2005.

After entering into the contract of sale, the plaintiffs learned that the property's certificate of occupancy described it as a single-family dwelling with an attached garage even though the home no longer had a garage since it had previously been converted by the defendant or her predecessor in title into additional living space. The defendant did not possess the necessary permits or variances for the conversion of the garage into living space.

The plaintiffs, through counsel, requested from the defendant written confirmation from the New York City Building Department that the conversion of the garage into living space was legal as it was presently constructed or, in the event that the defendant could not produce this documentation, the plaintiffs demanded a return of their contract down payment. Rather than produce the requested documentation, the defendant advised the plaintiffs by letter dated December 7, 2005, that since, as of that date, the closing had yet to occur, the defendant designated December 20, 2005, at 2:00 P.M., at her attorney's office, as the closing date. The letter stated that the date "is of the very essence" and that failure to appear and close title on that date would be construed as a default on the part of the plaintiffs. In response, counsel for the plaintiffs advised the defendant's attorney by facsimile dated December 12, 2005, that the defendant's "time of the essence letter" was rejected given the defendant's refusal to remedy the illegal conversion of the garage. The plaintiffs did not attend the December 20, 2005, closing.

In their initial motion for summary judgment against the defendants, the plaintiffs maintained that the defendant breached the contract by failing to obtain a permit, license, or other authorization from the New York City Department of Buildings for the conversion of the one-car garage to residential use. The plaintiffs specifically argued that the defendant breached both paragraph 15 of the rider to the contract, which indicated that the premises was a legal one-family dwelling even though the certificate of occupancy showed that the property was a one-family dwelling with a one-car garage, and paragraph 11(a) of the contract, which required the defendant to "comply with all notes or notices of violations of law or municipal ordinances, orders or requirements noted in or issued by any governmental department having authority." The plaintiffs also contended that the defendant refused to comply with certain provisions of the Administrative Code of the City of New York (hereinafter the Administrative Code).

Moreover, the plaintiffs contended that the defendant's violation of the Administrative Code voided the contract, thereby entitling the plaintiffs to summary judgment. With respect to this second argument, the plaintiffs maintained that Administrative Code § 27-147 required that no building, construction, alteration, or plumbing work may be commenced until a written permit had been issued and that Administrative Code § 27-118.1 prohibited the conversion of a property into a dwelling for more than the legally-approved number of families. Specifically, the plaintiffs argued, without citing to a specific contract provision: "Thus, since the contract required that the defendant comply with law, and if complying with such laws was impossible, and/or required action which was not in compliance with the Building Code (since the garage had already been converted to a living space, complete with a wall and windows where ...


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