& Bruh, LLP, New York, NY (Nativ Winiarsky of counsel),
Esseks, Hefter & Angel, LLP, Riverhead, NY (Anthony C.
Pasca and Kim A. Smith of counsel), for respondents.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B.
AUSTIN, BETSY BARROS, JJ.
DECISION & ORDER
from an order of the Supreme Court, Suffolk County (Arthur G.
Pitts, J.), dated September 1, 2015, and a judgment of that
court entered September 30, 2015. The order, insofar as
appealed from, denied that branch of the plaintiffs'
motion which was for summary judgment on the complaint and
granted that branch of the defendants' cross motion which
was for summary judgment on their second counterclaim. The
judgment, upon the order, in effect, dismissed the complaint,
and is in favor of the defendants and against the plaintiffs
on the defendants' second counterclaim in the principal
sum of $560, 000.
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is affirmed; and it is
further, ORDERED that one bill of costs is awarded to the
appeal from the 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 N.Y.2d 241,
248). 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]).
about October 6, 2014, the plaintiffs entered into a contract
with the defendants pursuant to which the defendants were to
purchase from the plaintiffs a property located in
Southampton for $5.6 million. The contract provided that the
closing was to take place on or about October 31, 2014.
contract stated that, in the event of a default by the
defendants, the plaintiffs' sole remedy would be to
retain the $560, 000 down payment as liquidated damages. The
contract also included a rider, pursuant to which the
plaintiffs represented that "the Premises is free and
clear of any mold or evidence of any existing mold
to the closing, by letter dated October 16, 2014, the
defendants cancelled the contract, claiming, among other
things, that an inspection of the property revealed extensive
evidence of mold throughout the premises, and requested the
immediate return of their down payment. In response, the
plaintiffs asserted that the defendants failed to allege a
substantial and material breach that would permit them to
cancel and repudiate the contract. Therefore, according to
the plaintiffs, the defendants' unilateral cancellation
and repudiation of the contract and their demand for the
return of their down payment constituted an anticipatory
breach, entitling the plaintiffs to retain the down payment
as liquidated damages.
plaintiffs commenced this action against the defendants,
alleging that they were entitled to retain the down payment
based upon the defendants' breach of the contract or
anticipatory breach of the contract. The defendants
counterclaimed, alleging, in their second counterclaim, that
the plaintiffs' representation that "the Premises is
free and clear of any mold or evidence of any existing mold
remediation" was false, and, therefore, the plaintiffs
breached and defaulted in their performance of the contract,
by reason of which the defendants had the right to cancel the
contract and were entitled to the return of their down
payment. The defendants also filed a notice of pendency
against the property.
order dated September 1, 2015, the Supreme Court, inter alia,
denied that branch of the plaintiffs' motion which was
for summary judgment on the complaint, granted that branch of
the defendants' cross motion which was for summary
judgment on their second counterclaim, directed the County
Clerk to cancel the notice of pendency, and directed the
plaintiffs to return the down payment. On September 30, 2015,
the court entered a judgment which, upon the order, in
effect, dismissed the complaint, and is in favor of the
defendants and against the plaintiffs on the defendants'
second counterclaim in the principal sum of $560, 000.
to the plaintiffs' contention, the Supreme Court properly
granted that branch of the defendants' cross motion which
was for summary judgment on their second counterclaim. In
support of their cross motion, the defendants submitted,
among other things, the affidavit of a professional engineer
who stated that he performed an inspection of the subject
property on October 11, 2014, and that he "observed
evidence of water in the basement, including puddles, rust on
the bottom of the boilers and metal, stains on the floor and
walls, and suspect mold." He further stated that he
"observed suspect mold on the garage ceiling, the
basement utility room, the sub-basement utility room, and the
second floor master bedroom closet." The engineer
recommended that "a mold specialist be called in to
evaluate the toxicity of the mold" and that "the
scope of the mold" could
known by having "a certified industrial hygienist or
someone with similar experience test the mold." This
affidavit established, prima facie, that the premises was not
"free and clear of any mold." Contrary to the
plaintiffs' contention, the contract does not indicate
that they represented that the premises is free and clear of
"toxic" mold only. "When the contract is in
writing, the best evidence of what the parties intended is
what they said in that writing" (Arthur Cab Leasing
Corp. v. Sice Mois Hacking Corp., 137 A.D.3d 828, 830;
see Givati v. Air Techniques, Inc., 104 A.D.3d 644,
645; County of Suffolk v. Long Is. Power Auth., 100
A.D.3d 944, 947). "It is the role of the courts to
enforce the agreement made by the parties- not to add, excise
or distort the meaning of the terms they chose to include,
thereby creating a new contract under the guise of
construction" (NML Capital v. Republic of
Argentina, 17 N.Y.3d 250, 259-260). The provision at
issue here states: "Sellers represent that the Premises
is free and clear of any mold or evidence of any
existing mold remediation" (emphasis added).
Interpreting this provision as referring only to
"toxic" mold would be adding a term to the contract
that the parties chose not to include.
plaintiffs correctly assert that the contract includes a
provision stating that the defendants' obligation to
purchase the premises is conditioned upon the "[t]he
accuracy, as of the date of Closing, of the
representations and warranties of [the plaintiffs] made in
this contract" (emphasis added) and also includes a
provision granting the plaintiffs the right to attempt to
cure any defects the defendants are unwilling to waive and
adjourn the date of closing for a period, or periods, of up
to 60 days in order to do so. The plaintiffs assert that by
cancelling the contract before allowing them the opportunity
to cure the defendants' objections, the defendants
anticipatorily breached the contract, entitling the
plaintiffs to retain the down payment. However, the provision
at issue states that "the premises is free and clear of
any mold or evidence of any ...