Opinion
Decided July 9, 1991
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Joseph P. Torraca, J.
Stephen M. Rathkopf and Arthur G. Jakoby for appellants.
Robert S. Carlson for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Where consideration of a contract as a whole resolves the ambiguity created by one clause, there is no occasion to consider extrinsic evidence of the parties' intent (W.W.W. Assocs. v Giancontieri, 77 N.Y.2d 157, 162-163). We agree with the Appellate Division majority that the contract in this case, read as a whole, establishes that it was defendants' duty to convey both an insurable title and title which was free of all encumbrances save those specified in the contract. As there is no dispute that the title was subject to two unspecified encumbrances, plaintiff was not required to perform under the contract, and summary judgment was properly granted for plaintiff on its cause of action seeking return of its down payment and the cost of the title search.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.