Opinion
November 16, 1992
Appeal from the Supreme Court, Queens County (Hentel, J.).
Ordered that the appeal from the order dated May 18, 1990, is dismissed; and it is further,
Ordered that the judgment is modified, by deleting the provision thereof which directed Exclusive Envelope Corp. to pay the appellants the sum of $486,686.69; as so modified, the judgment is affirmed; and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith; and it is further,
Ordered that the respondent is awarded one bill of costs. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Pursuant to the contract entered into between the parties, Exclusive Envelope Corp. had two separate and distinct purchasing options, one involving the use of bonds issued by the New York City Industrial Development Agency (hereinafter the IDA) and the other being an all-cash sale. The paragraph setting forth the IDA bond option specified that the "[p]urchaser shall have one hundred eighty (180) days to obtain IDA approval and commitments to purchase bonds". In contrast, the paragraph containing the all-cash purchase option contained no 180-day limit. Furthermore, the contract stipulated that closing would occur "no later than 1/31/83". Although the 180-day period for obtaining IDA financing began to run on the contract date of February 4, 1982, it is clear that the appellants' contention that the contract terminated 180 days after February 4, 1982, is without merit. The clear language of the agreement demonstrated that only the IDA financing option was subject to this time limitation. Furthermore, the appellants' assertion that the contract's closing date of January 31, 1983, was made of the essence by the above-quoted language is without merit (see, O'Connell v Clear Holding Co., 126 A.D.2d 530; 4200 Ave. K Realty Corp. v 4200 Realty Co., 123 A.D.2d 419). Prior to asserting a claim of default the appellants were required to serve a clear, distinct, and unequivocal notice demanding performance, fixing a reasonable time in which to do so, and warning that failure to close on that date would be considered a default (see, Karamatzanis v Cohen, 181 A.D.2d 618; Zahl v Greenfield, 162 A.D.2d 449; Sohayegh v Oberlander, 155 A.D.2d 436, 438).
The trial court's finding that Exclusive Envelope Corp. would have been ready, willing, and able to close on an all-cash basis within a reasonable time after the nonfirm closing date of January 31, 1983, was based upon a fair interpretation of the evidence presented, and this finding should not be disturbed (see, Gonzalez v Chalpin, 159 A.D.2d 553; cf., Huntington Min. Holdings v Cottontail Plaza, 60 N.Y.2d 997; see also, 96 N.Y. Jur 2d, Specific Performance, § 24). However, the trial court improperly failed to take into account the amounts expended by the appellants as carrying costs for the property during its wrongful retention, since Exclusive Envelope Corp. occupied the premises during that period (see, 4200 Ave. K Realty Corp. v 4200 Realty Co., supra, at 421). We therefore remit this action to the trial court for a recalculation of the amounts payable to the appellants by Exclusive Envelope Corp., at which time the appellants will be permitted to present documentary evidence of the amounts in question. We note that at the trial Exclusive Envelope Corp. itself offered expert testimony tending to prove that the carrying costs in question would have amounted to some $1,450,000 (see, Freidus v Eisenberg, 71 N.Y.2d 981). Mangano, P.J., Eiber, Ritter and Santucci, JJ., concur.