June 29, 1972
Order, Supreme Court, New York County, entered on December 1, 1971, denying motion for summary judgment, unanimously reversed, on the law, the motions granted, and the complaint dismissed. Appellants shall recover of respondents $50 costs and disbursements of this appeal. The suit is for specific performance of an agreement of lease of certain premises from a contract vendee, so described in the document, of those premises. The lease term was not to "commence prior to the date Landlord [defendant-appellant] takes title to the premises and in the event Landlord does not take title to the premises, his lease shall terminate and become null and void" and the money deposited by plaintiff-respondent tenant returned, with both parties relieved of further obligation. This condition subsequent was never performed before the time limited by contract for such performance: the contract vendee never acquired the property and its offer to return the deposit was refused. There was no contract provision requiring defendant to take title. These contract conditions may not be varied by parol evidence. Plaintiff attempts to justify its claim by a theory of conspiracy between defendant, the eventual purchaser and others but does not come forward with facts to substantiate this theory. Therefore, no triable issue has been demonstrated.
Concur — Stevens, P.J., Markewich, Kupferman, Murphy and Capozzoli, JJ.