Heading: 61 N.Y.2d 106
-Buyer entered into a written agreement with the seller to purchase a majority stock interest in a vineyard.
-At closing, the buyer discovered that a title insurance policy that was required to be obtained by the seller under the parties’ contract had not been issued.
-The seller refused to close and demanded return of its deposit pursuant to the express terms of the parties’ contract.
-When the seller did not return the deposit, the buyer filed an action for a return of the deposit and for consequential damages.
-The motion court denied the buyer’s motion for summary judgment. The lower court reversed and granted the buyer’s motion for summary judgment as to the cause of action for return of the deposit, and upon searching the record pursuant to N.Y. C.P.L.R. 3212(b), granted summary judgment in favor of the seller, which dismissed the seller’s cause of action for consequential damages even though the seller had not cross-appealed.
-The court determined that the lower court properly granted motion for summary judgment in favor of the seller on the issue of consequential damages because a cross-motion was not required under the authority of rule 3212.
Plaintiff buyer sought review of a decision of the Appellate Division of the Supreme Court in the Fourth Judicial Department (New York), which granted defendant seller’s motion for summary judgment in the buyer’s cause of action for consequential damages even though the seller had not cross-appealed in the lower court. The seller appealed an order that granted the buyer’s motion for summary judgment for the return of a sale deposit.
while a contracting party’s failure to fulfill a condition excuses performance by the other party whose performance is so conditioned, it is not, without an independent promise to perform the condition, a breach of contract subjecting the non-fulfilling party to liability for damages.
before we have a K there is a condition precedent that needs to be fulfilled. if it’s not fulfilled we have no K.
1.the way a condition operates is different then a promise. a cond. needs to be literally performed to the letter, whereas in a promise the person can get by with only subst. prf. as long as they fulfilled the spirit and purpose of the K
2. If a condition fails to occur, K doesn’t happen, so you don’t get K damages. you get whatever the condition says you can get.
The court affirmed the decision of the lower court. The court held that the seller did not need to file a cross-appeal to be granted summary judgment by the lower court.