Opinion
May 7, 1990
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the order is affirmed insofar as appealed from, with costs to the intervenors-defendants.
On December 31, 1986, the respondents Raymond Cook and Steven Krupa entered into a contract to sell a parcel of land to Sophia Panagiotopoulos. The contract provided, inter alia, that closing was to take place on or before June 1, 1987. Despite the fact that this closing date was adjourned a number of times, the respondents entered into a "backup contract" on August 11, 1987, to sell the same property to the appellants in the event the first sale fell through. The appellants commenced the instant action for specific performance and damages in October 1987; and, in January 1988, the purchaser under the first contract, Panagiotopoulos, assigned the contract to the intervenors-respondents John R. Rice, Dianne Rice and Lat Sound Corporation.
On appeal, the appellants argue that the first contract, by its terms, terminated on June 1, 1987. We disagree. The record clearly shows that the parties to the first contract could orally agree to extend the closing date beyond June 1, 1987, which they did (see, Rose v. Spa Realty Assocs., 42 N.Y.2d 338, 343; see also, Pau v. Bellavia, 145 A.D.2d 609; Buckley v. Pomerantz, 145 A.D.2d 523). Therefore, the appellants are not entitled to specific performance pursuant to the terms of the backup contract since it was secondary to the first contract. In any event, they would not be entitled to specific performance since they failed to comply with the conditions precedent set forth in the backup contract which they signed (see, Weaver v. Hilzen, 147 A.D.2d 634).
Furthermore, the court properly dismissed the remaining causes of action sounding in tortious interference with contract, civil conspiracy and waste (see, Alexander Alexander v. Fritzen, 68 N.Y.2d 968; Stratford Materials Corp. v. Jones, 118 A.D.2d 559; 6 Warren's Weed, New York Real Property, Waste, § 3.01 [4th ed]).
In view of this determination, note that the respondents and/or the intervening respondents may make an appropriate application before the Supreme Court for cancellation of the lis pendens (see, CPLR 6514 [a]). Thompson, J.P., Bracken, Sullivan and Balletta, JJ., concur.