SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1213 

CA 13-00190 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

MICHAEL F. FERCHAW AND REBECCA L. FERCHAW, 

PLAINTIFFS-RESPONDENTS, 

V MEMORANDUM AND ORDER

RUTH A. TROXEL, DEFENDANT-APPELLANT.

 

THOMAS J. RZEPKA, ROCHESTER, AND BURKE, ALBRIGHT, HARTER & REDDY, LLP,

FOR DEFENDANT-APPELLANT.

ROSSETTIE ROSSETTIE & MARTINO LLP, CORNING (GABRIEL V. ROSSETTIE OF

COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

 

Appeal from a judgment (denominated decision and order) of the

Supreme Court, Steuben County (Peter C. Bradstreet, A.J.), entered

September 14, 2012. The judgment granted the motion of plaintiffs

seeking, inter alia, summary judgment declaring valid and enforceable

the purchase and sale contract executed by the parties on July 13,

2011 and seeking certain injunctive relief. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action pursuant to RPAPL

article 15, seeking a judgment declaring that the real estate contract

executed by the parties is valid and enforceable. The complaint also

sought a judgment directing defendant to cooperate with plaintiffs in

their efforts to perform the contract and to grant plaintiffs access

to the property for the purpose of obtaining an appraisal. Supreme

Court granted plaintiffs’ motion for summary judgment on both causes

of action, issuing the declaration and granting the injunctive relief

sought by plaintiffs. We affirm. 

In July 2011, shortly after her husband died, defendant

approached plaintiff Michael F. Ferchaw and asked whether he would

like to purchase her farm, stating that she wanted to sell the

property as soon as possible. Defendant had significant debt and a

fixed income, and she was concerned that she could not afford to keep

the farm. After inspecting the property, plaintiffs agreed to

defendant’s purchase price of $300,000. Plaintiffs’ attorney drafted

the purchase and sale contract, which provided, inter alia, that the

sale was “contingent upon [plaintiffs] obtaining mortgage financing

satisfactory to [them] within six (6) weeks of the acceptance of

[their] offer.” The purchase price set forth in the contract is
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CA 13-00190 

$375,000, with a $75,000 “gift of equity” to plaintiffs at closing,

“leaving a balance of $300,000 being payable” to defendant at closing. 

The contract was not contingent upon approval of the parties’

attorneys. 

The parties executed the contract on July 13, 2011. The

following day, defendant received an offer from another party to

purchase the oil, gas and mineral rights on the property for more than

$440,000. Although, as noted, the contract did not include a

contingency for attorney approval, defendant’s attorney advised

plaintiffs on July 15, 2011 that he did not approve of the contract

and that it was “deemed canceled.” Plaintiffs thereafter commenced

this action. 

Defendant contends that the court erred in granting plaintiffs’

motion for summary judgment because plaintiffs offered no evidence

that they had the financial wherewithal to purchase the property and

thus failed to establish that they were ready, willing, and able to

perform under the contract. That contention is raised for the first

time on appeal and thus is not properly before us (see Ciesinski v

Town of Aurora, 202 AD2d 984, 985). In any event, defendant’s

contention lacks merit. Although a plaintiff seeking specific

performance or monetary damages for nonperformance of a contract must

demonstrate that he or she was ready, willing and able to perform on

the contract (see Pesa v Yoma Dev. Group, Inc., 18 NY3d 527, 531-532;

Madison Invs. v Cohoes Assoc., 176 AD2d 1021, 1021-1022, lv dismissed

79 NY2d 1040), plaintiffs in this case have not requested specific

performance or monetary damages; instead, their complaint seeks

declaratory relief and a court directive that defendant must allow

plaintiffs on the property for the purpose of obtaining an appraisal. 

We note that, because defendant refused to allow plaintiffs to enter

the property, plaintiffs were unable to obtain an appraisal, which was

necessary for them to secure financing. Thus, defendant’s

anticipatory breach impeded plaintiffs’ ability to demonstrate that

they were financially capable of purchasing the property. 

Defendant further contends that, because the mortgage contingency

provision of the contract fails to include essential and material

terms of the mortgage to be obtained by plaintiffs, such as the

interest rate and term of the mortgage, there is an issue of fact

whether the contract is unenforceable under the statute of frauds (see

General Obligations Law § 5-703 [2]). By failing to plead the statute

of frauds as an affirmative defense in her answer, however, defendant

waived that defense (see CPLR 3018 [b]; Griffith Energy, Inc. v Evans,

85 AD3d 1564, 1566). In any event, we conclude that the contract

satisfies the statute of frauds inasmuch as it identifies the parties,

describes the property to be conveyed, sets forth the purchase price

and the closing date, and provides the medium of payment (see

Sabetfard v Djavaheri Realty Corp., 18 AD3d 640, 641; Birnhak v

Vaccaro, 47 AD2d 915, 916). Although there is authority for the

proposition that “the terms and conditions of a mortgage subject to

which a purchaser is to take title to real property are essential and

material elements of [a] contract” for the sale of real property (Read

v Henzel, 67 AD2d 186, 189; see Matter of Licata, 76 AD3d 1076, 1077;
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CA 13-00190 

Wacks v King, 260 AD2d 985, 987), those cases involve contracts

pursuant to which the seller loaned money to the buyer and then held a

mortgage on the transferred property. Here, in contrast, the contract

provided for defendant to be paid in full at closing and for

plaintiffs to obtain financing from a third-party lender. Thus, there

was no need for the parties’ contract to specify the interest rate and

the term of the mortgage. 

Defendant’s further contention that the “gift of equity”

provision renders the contract illegal is improperly raised for the

first time on appeal, and we therefore do not address it (see Mee v

Strader, 89 AD3d 1487, 1488; Matter of City of Yonkers v International

Assn. of Firefighters, Local 628, AFL-CIO, 58 AD2d 891, 891, lv denied

43 NY2d 643). We reject defendant’s related contention that the “gift

of equity” provision was drafted and presented to defendant in a

manner calculated to deceive her, and we conclude that defendant’s

alleged lack of understanding of that provision does not render the

contract unenforceable (see generally Da Silva v Musso, 53 NY2d 543,

550). Finally, we conclude that the issue whether a contingency

provision for attorney approval should be required in residential real

estate contracts, as defendant suggests, involves “a policy decision

for the Legislature, not the courts, to make,” and we decline to

impose such a requirement (Doe v City of Schenectady, 84 AD3d 1455,

1459). 

Entered: December 27, 2013 Frances E. Cafarell

Clerk of the Court