Opinion
Argued October 11, 1985
Decided November 12, 1985
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Reuben K. Davis, J.
Eileen E. Buholtz for appellants.
Ellen Lefkowitz for respondents.
Order reversed, with costs, and judgment of Supreme Court, Monroe County, reinstated for the reasons stated in the dissenting memorandum of Justice Stewart F. Hancock, Jr., at the Appellate Division ( 107 A.D.2d 1013, 1014-1015). We agree with the dissent below that, based upon the specific provisions of the contract and the amendments made thereto, the risk of loss passed to the purchasers upon the date of the escrow closing.
Concur: Chief Judge WACHTLER and Judges JASEN, MEYER, KAYE and ALEXANDER. Judge TITONE dissents and votes to affirm for the reasons stated in the memorandum of the Appellate Division ( 107 A.D.2d 1013). Taking no part: Judge SIMONS.