Blake Realty, Inc. v. Gilligan

Levine, J.,

dissents and votes to reverse in a memorandum. Levine, J. (dissenting). Although defendant’s affidavit in opposition could have been more explicit, giving his averments the benefit of any and all favorable inferences, as we must on a motion for summary judgment, he contends that, at the time he signed the listing agreement, he specifically pointed out to plaintiff’s representative that there were several prospective purchasers with whom he had been discussing the sale of his business and that, before the agreement with plaintiff was to *818become effective, there had to be a further agreement between the parties excepting those several potential buyers from the exclusive listing. Supportive of defendant’s position are the facts, uncontradicted by plaintiff, that defendant’s copy of this simple, bilateral contract was not signed by plaintiff’s representative when defendant executed it and gave one executed copy to plaintiff’s agent, that plaintiff made no effort to market the business and, in fact, never delivered a fully executed copy to defendant or otherwise contacted him prior to defendant’s independent sale of the business.

In my view, the foregoing proof by defendant created a triable issue of fact as to whether an operative listing agreement ever came into existence. In essence, defendant has submitted paroi evidence of the failure of an oral condition precedent to the legal effectiveness of the agreement plaintiff seeks to enforce, long recognized as a valid defense (see, Thomas v Scutt, 127 NY 133, 137). Under modern New York law, paroi evidence to establish the existence of such a condition precedent to an executed, delivered agreement is admissible unless the condition contradicts the express terms of the written agreement (see, Long Is. Trust Co. v International Inst. for Packaging Educ., 38 NY2d 493, 496-497; Hicks v Bush, 10 NY2d 488, 491-492). "A certain disparity is inevitable, of course, whenever a written promise is, by oral agreement of the parties, made conditional upon an event not expressed in the writing. Quite obviously, though, the paroi evidence rule does not bar proof of every orally established condition precedent, but only of those which in a real sense contradict the terms of the written agreement” (Hicks v Bush, supra, at 491 [emphasis supplied]).

In my view, defendant’s conditioning the effectiveness of the listing agreement on the parties’ further agreement to except therefrom a sale to a narrowly drawn group of possible purchasers with whom defendant had previously dealt is not such a flat contradiction of the terms of the agreement as to bar paroi proof. This is particularly so under the circumstances here of an unexplained, nonsimultaneous execution of the agreement by plaintiff and the similarly unexplained absence of delivery of a fully executed copy to defendant. Thus, the parties’ conduct, both at the time defendant signed the agreement and subsequent thereto, supports rather than negates the existence of an unfulfilled condition upon the agreement’s effectiveness.

Any inconsistency between the written agreement and the oral condition precedent defendant seeks to prove seems to *819fall well within the cases where admissibility of paroi to prove the condition was upheld (see, Long Is. Trust Co. v International Inst. for Packaging Educ., supra; Hicks v Bush, supra; Bernstein v Kritzer, 253 NY 410, 415-416; Everett v Winnie, 28 AD2d 605; Peo v Kennedy, 16 AD2d 306, 307-308; International Assets Corp. v Axelrod, 245 App Div 300, 301). Admissibility here is also supported by modern authoritative texts on the law of contracts (see, 3 Corbin, Contracts § 577, at 390; § 589, at 534; Restatement [Second] of Contracts §217, text and comments a, b).

Accordingly, summary judgment should not have been granted here and I would reverse and deny plaintiff’s motion.