Parker v. Booker

In an action for specific performance of a real estate option agreement, the plaintiff appeals from a judgment of the County Court, Suffolk County (Bohrer, J.), dated November 15, 2004, which, after a nonjury trial, is in favor of the defendant and against him, dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The terms of the option agreement between the plaintiff and the defendant required the plaintiff to pay the property taxes on the defendant’s land during the four-year option period. This he failed to do. After the plaintiff failed to do so for two years and seven months, the defendant listed the land for sale.

“It is well settled that in order to validly exercise an option to purchase real property, the optionee must strictly adhere to the terms and conditions of the option agreement” (D. A. D. Rest, v Anthony Operating Corp., 139 AD2d 485, 486 [1988]; see also *603T.I.P. Holding No. 2 Corp. v Wicks, 63 AD2d 263 [1978]), and after a reasonable time has elapsed without one party adhering to the terms and conditions of the agreement, the other party is free to rescind the contract (see Perna v Desai, 101 AD2d 857, 858 [1984], affd 63 NY2d 898 [1984]). Accordingly, the defendant was free to rescind the contract, and the plaintiff was not entitled to specific performance.

Contrary to the opinion of our dissenting colleague, neither the fact that the plaintiff paid taxes before entering into the contract nor the defendant’s failure to demand that the plaintiff pay the taxes or provide him with copies of the tax bills alters this conclusion. The parties’ respective obligations are governed by the terms of the contract (see W.W.W Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]; First Nationwide Bank v Brookhaven Realty Assoc., 223 AD2d 618, 621 [1996]), and we are not free to add additional terms to those obligations (see Stathakis v Poon, 295 AD2d 496, 497 [2002]; Slamow v Del Col, 174 AD2d 725 [1991], affd 79 NY2d 1016 [1992]; see also Chemical Bank v Meltzer, 93 NY2d 296, 303 [1999]; Fiore v Fiore, 46 NY2d 971, 973 [1979]). The contract unambiguously imposed on the plaintiff the obligation to pay the taxes. There is nothing in the contract that obligated the defendant to provide the plaintiff with notice of the tax amount or the date on which payment was due. In fact, the contract imposed no obligations on the defendant with respect to the payment of taxes. That the plaintiff may have paid taxes before entering into the contract is irrelevant to his compliance with his contractual obligations (cf. Jorjill Holding v Grieco Assoc., 6 AD3d 500 [2004]).

Finally, the failure of the contract to specify a date on which the taxes were required to be paid does not abrogate the plaintiffs obligation to pay the taxes (see Silken v Farrell, 281 App Div 718 [1952], affd 306 NY 585 [1953]; see also Hadlick v DiGiantommaso, 154 AD2d 338 [1989]). Where a contract is silent as to the date of performance, the law will imply a reasonable date (see Savasta v 470 Newport Assoc., 82 NY2d 763, 765 [1993]; Teramo & Co. v O’Brien-Sheipe Funeral Home, 283 AD2d 635, 636 [2001]). What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case (see Ben Zev v Merman, 73 NY2d 781, 783 [1988]). Since real property taxes by their nature are due on a particular day, the reasonable date on which they were required to be paid is the date on which they were due (see Real Property Tax Law §§ 902, 924, 925, 926 [1]; cf. Travelers Ins. Co. v 633 Third Assoc., 14 F3d 114, 123 [1994]; Nunner v Newburgh City School Dist., 92 AD2d 888 [1983]). In any event, there is no *604dispute that at the time the defendant rescinded the contract, no tax payments had been made by the plaintiff for more than 2V2 years, a period of time sufficiently long to conclude, under the circumstances of this case, that the plaintiff had defaulted under the terms of the option agreement requiring him to pay real property taxes. Krausman, J.E, Spolzino and Dillon, JJ., concur.