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Bass Development of New York, Inc. v. Baisch

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


November 13, 2009

BASS DEVELOPMENT OF NEW YORK, INC., RESPONDENT,
v.
NEIL D. BAISCH ET AL., DEFENDANTS, AND SODUS MARINA, LLC, APPELLANT.

Appeal from an order of the Supreme Court, Wayne County (Kenneth R. Fisher, J.), entered May 30, 2008. The order, insofar as appealed from, denied in part the motion of defendant Sodus Marina, LLC seeking partial summary judgment dismissing the first cause of action against it.

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

As corrected through Wednesday, January 6, 2010

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the first cause of action against defendant Sodus Marina, LLC is dismissed in its entirety.

Memorandum

Plaintiff commenced this action seeking, inter alia, specific performance of a contractual addendum for the conveyance of "two separate dock condominium units," as well as related easements and rights-of-way. Supreme Court denied in part the motion of Sodus Marina, LLC (defendant) seeking partial summary judgment dismissing the first cause of action against it (Bass Dev. of N.Y., Inc. v Baisch, 20 Misc 3d 522 [2008]), and we agree with defendant that the court should have granted the motion in its entirety. Plaintiff has no equitable interest in any portion of the townhouse and marina project (project) inasmuch as the addendum does not constitute a valid purchase and sale agreement for real property (see generally Nesbitt v Penalver, 40 AD3d 596, 597-598 [2007]; EMF Gen. Contr. Corp. v Bisbee, 6 AD3d 45, 55 [2004], lv dismissed 3 NY3d 656 [2004], lv denied 3 NY3d 607 [2004]). Further, we conclude that specific performance is not an available remedy under the circumstances of this case. The addendum provided that plaintiff would accept either conveyance of the real property or $50,000 as payment for its services on the project, and thus plaintiff has an adequate remedy at law (see T.F. Demilo Corp. v E.K. Constr. Co., 207 AD2d 480, 481 [1994]; see generally Pecorella v Greater Buffalo Press, 107 AD2d 1064, 1065 [1985]).

Present---Hurlbutt, J.P., Centra, Fahey, Peradotto and Gorski, JJ.

[See 20 Misc 3d 522.]

20091113

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