Frank Felicello, Sr., Appellant, v. Rose Gandolfo et al., Respondents

Frank Felicello, Sr., Appellant, v Rose Gandolfo et al., Respondents. [MAJORITY] — In an action for specific performance of a contract for the sale of real property, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Owen, J.), dated April 21, 1987, as denied his motion for summary judgment and granted the defendants’ cross motion for summary judgment dismissing the complaint. Ordered that the order is affirmed insofar as appealed from, with costs. We find that the court properly granted summary judgment dismissing the complaint. The contract between the parties provided in pertinent part that the ''deed [would] recite a reservation/exception in favor of the grantor Rose Salatino of one (1) acre out of the premises to be conveyed.” It further provided that the plaintiff was to assume all subdivision and other ancillary costs, and directed that the defendants were to cooperate with the plaintiff by signing any and all documents "necessary to enable the purchaser [the plaintiff] to subdivide the property for the purpose of conveying” the one-acre parcel. Under the circumstances of this case, including certain written admissions of the plaintiff, the parties clearly intended that the subdivision of the parcel was the plaintiff’s responsibility. Thus the plaintiff, having failed to take any steps whatever to obtain subdivision approval, was not entitled to specific performance of the contract. Brown, J. P., Eiber, Sullivan and Harwood, JJ., concur.