In an action, inter alia, to recover damages for breach of contract and for a judgment declaring West-bury 55 Realty Corp. and Interamerican Mortgage Corp. responsible for paying certain agricultural liabilities from funds held in escrow by Peter Zahakos, Esq., as escrow agent, West-bury 55 Realty Corp., Interamerican Mortgage Corp., and Peter Zahakos, Esq., as escrow agent, appeal, as limited by their brief, (1) from so much of an order of the Supreme Court, Nassau County (O’Connell, J.), entered October 18, 2001, as granted those branches of the motion of the Incorporated Village of Old Westbury and the cross motion of the Westbury School District which were for summary judgment dismissing their cross claim for strict foreclosure insofar as asserted against them, in effect declared that tax liens against the subject real property representing agricultural liabilities pursuant to Agriculture and Markets Law § 306 (2) (a) (i) were valid, and granted those branches of the cross motion of Bethel United Pentecostal Church, Inc., which were for summary judgment declaring that Westbury 55 Realty Corp. was obligated to pay any agricultural liabilities found to be due and directing that the escrow funds held by Peter Zahakos, Esq., be applied for that purpose, and (2) from so much of a judgment of the same court, dated March 26, 2002, as declared that the subject property had been converted from agricultural to nonagricultural use, directed Westbury 55 Realty Corp. to pay the agricultural liabilities to the Incorporated Village of Old Westbury, the County of Nassau, and the Westbury School District, directed Peter Zahakos, Esq., as escrow agent, to pay and apply escrow monies pro rata to the extent that such escrow funds could cover the agricultural liabilities, and awarded damages for breach of contract in favor of Bethel United Pentecostal Church, Inc., and against Westbury 55 Realty Corp. in the principal sum of $897,608.10, to be reduced by any amount
Ordered that the appeal from the order entered October 18, 2001, is dismissed; and it is further,
Ordered that the cross appeal by Bethel United Pentecostal Church, Inc., from the judgment is dismissed, without costs or disbursements, as that party is not aggrieved by the portion of the judgment appealed from (see CPLR 5511); and it is further, Ordered that the judgment is affirmed insofar as appealed from by Westbury 55 Realty Corp., Interamerican Mortgage Corp., and Peter Zahakos, Esq., as escrow agent; and it is further,
Ordered that the appeal and cross appeal from the order entered August 8, 2002, are dismissed, as no appeal lies from an order denying resettlement of decretal paragraphs of a prior judgment (see Lipkins v Tesler, 277 AD2d 358 [2000]; Kubick v Kubick, 261 AD2d 300 [1999]; Men’s World Outlet v Steinberg, 101 AD2d 854 [1984]); and it is further,
Ordered that one bill of costs is awarded to the Incorporated Village of Old Westbury and the Westbury School District, payable by Westbury 55 Realty Corp., Interamerican Mortgage Corp., and Peter Zahakos, Esq., as escrow agent.
The appeal from the intermediate order entered October 18, 2001, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
This matter concerns real property located in the Incorporated Village of Old Westbury (hereinafter the Village), which is presently owned by Bethel United Pentecostal Church, Inc. (hereinafter the Church). The Church had acquired title to the
Beginning in 1981, the property benefitted from a reduced agricultural assessment pursuant to agricultural commitments entered into by the then owners, pursuant to Agriculture and Markets Law article 25AA. In 1994, Waverly continued the reduced assessment by entering into a commitment which required the continued utilization of the property for agricultural purposes for the next eight years. Failure to use the property for such purposes subjected the property to the imposition of agricultural liabilities under Agriculture and Markets Law § 306 (2) (a) (i). Agricultural liabilities constituted an amount equal to “five times the taxes saved in the last year in which [the] land benefited from an agricultural assessment, plus interest of six percent per year compounded annually for each year in which an agricultural assessment was granted, not exceeding five years” (Agriculture and Markets Law § 306 [2] [a] [i]).
In view of the 1994 agricultural commitment which encumbered the property, the Church negotiated with Westbury 55 to remove the encumbrance prior to closing. Having failed to do so, the Church and Westbury 55 entered into an agreement as part of the purchase-money mortgage whereby the latter agreed to obtain a “No-Action” document from the relevant taxing authorities. If the no-action document was not obtained before construction began, the Church had the right to pay the agricultural liabilities and deduct that amount from the principal due on the mortgage. If the mortgage was paid off before the no-action document was obtained, the sum of $670,000 was to be deducted from the mortgage debt and held in escrow by Peter Zahakos, Esq., as escrow agent.
In October 1999 the Church refinanced the mortgage, thereby paying off its mortgage debt to Westbury 55. Westbury 55 had
In November 1999 Westbury 55 commenced a strict foreclosure action against the relevant taxing authorities, including the Village, the Westbury School District (hereinafter the District), and the County of Nassau, inter alia, challenging the imposition of the agricultural liabilities. The Church declined Westbury 55’s request to join as a party plaintiff in that action. Nonetheless, that action was dismissed on the ground that Westbury 55 lacked standing to commence it, since it no longer had any interest in the property.
On February 29, 2000, the County served an agricultural assessment notice of conversion and payment due that determined the agricultural liabilities due to be $123,488.04 to the County and $550,192.71 to the District. Thereafter, the Village determined that the agricultural liabilities due it was $145,598.07. It is undisputed that at least a portion of the property had been converted to a nonagricultural use before the eight-year commitment was to expire, while the remaining portion thereof was left fallow.
After Westbury 55 refused to release the escrow funds to pay the agricultural liabilities, the Church commenced this action, inter alia, for specific performance of its agreement with West-bury 55 pursuant to which the agricultural liabilities were the latter’s responsibility, a judgment declaring that the agricultural liabilities are Westbury 55’s responsibility and not the Church’s, and for damages for breach of contract. Westbury 55, inter alia, asserted strict foreclosure cross claims against the Village and the District to extinguish the agricultural liabilities. Westbury 55 also asserted a counterclaim against the Church for a judgment declaring that it was not responsible for paying the agricultural liabilities because the Church breached their agreement by failing to join in the prior strict foreclosure action.
Contrary to Westbury 55’s contention, the Supreme Court properly granted those branches of the Village’s motion and the District’s cross motion which were to dismiss the strict foreclosure cross claim and to uphold the agricultural liabilities tax lien. Westbury 55’s argument that Waverly lacked the authority to encumber the property with the eight-year 1994 agricultural commitment because of the 1991 judgment of foreclosure and sale is without merit. The entry of a judgment of
Those branches of the Church’s cross motion which were for summary judgment seeking a declaration that Westbury 55 was obligated to pay any agricultural liabilities found to be due and that the escrow funds were to be applied for that purpose were also property granted. Since strict foreclosure was not an available remedy to extinguish the agricultural liabilities, there is no merit to Westbury 55’s contention that the Church breached its implicit obligation to act in good faith (see Van Valkenburgh, Nooger & Neville v Hayden Publ. Co., 30 NY2d 34 [1972], cert denied 409 US 875 [1972]), by refusing to join the prior strict foreclosure action. Therefore, Westbury 55 was not relieved by any purported breach of contract by the Church from its unambiguous and explicit obligations to pay the agricultural liabilities arising from its failure to obtain the no-action document (see 1550 Fifth Ave. Bay Shore v 1550 Fifth Ave., 297 AD2d 781, 783 [2002]; Madison Invs. v Cohoes Assoc., 176 AD2d 1021 [1991]).
Westbury 55’s remaining contentions are without merit. Santucci, J.P., Schmidt, Adams and Cozier, JJ., concur.