Collegiate Asset Management Corp., Appellant, v. 45 John Mezzanine, LLC, et al., Respondents

Collegiate Asset Management Corp., Appellant, v 45 John Mezzanine, LLC, et al., Respondents. [926 NYS2d 897] [MAJORITY] The parties’ agreement provided for defendant purchaser 45 John Mezzanine, LLC to make an “Additional In Kind Payment Following Closing” to plaintiff seller of either two condominium units or cash. The agreement stated that the parties “shall” enter into contracts of sale for the purchase of the condominium units by a certain date. Although similar mandatory language requiring the execution of further agreements, coupled with a deadline, has been held to constitute a condition precedent requiring strict compliance before a further obligation would arise (see IDT Corp. v Tyco Group, S.A.R.L., 13 NY3d 209 [2009]), it is evident that defendant’s obligation to make the cash payments that were due if the two units were not transferred was not contingent on execution of the contracts for sale of those units. Rather, the agreement evinces an intent that plaintiff was to be further compensated after the closing by either conveyance of the two units or payment of additional money. In view of the foregoing, it is unnecessary to address the parties’ contentions regarding frustration of the condition and waiver. We find their other contentions unavailing. Concur— Andrias, J.E, Saxe, Catterson, Abdus-Salaam and ManzanetDaniels, JJ.