        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
