The Supreme Court, Suffolk County (Hon. Peter H. Mayer) has granted a seller summary judgment on a downpayment and specific performance dispute in Friedman v. Kriss, Index No. 13-9326.  The action involved competing claims by the sellers and buyers:  the sellers claimed that the buyers breached the contract by failing to make a required installment payment, and the buyers claimed that the sellers breached by failing to deliver an updated “certificate of occupancy” a year prior to the scheduled closing.  The court agreed with the sellers and found that the buyer’s duty to make the installment payment was “time of the essence,” whereas any requirement of the sellers to deliver a certificate of occupancy was not.  The sellers were therefore awarded summary judgment on their claim to retain the downpayment, and the buyers’ claim for specific performance was dismissed.  EHA represented the sellers in the action.

The Supreme Court, Suffolk County has upheld a zoning board’s decision granting a variance to allow the replacement of a nonconforming guest house in Wambold v. Village of Southampton ZBA, Index No. 13-21238 (Hon. Arthur G. Pitts). The case involved a recurring but often misunderstood issue:  is a second dwelling on a residential property a nonconforming use (which would require a use variance to authorize its expansion) or a nonconforming structure with a conforming use (which would only require an area variance)?  The zoning board found the latter, and the Supreme Court, following a line of cases in New York on the issue, agreed.  The court explained that an “application for a variance to enlarge the floor area and density seeks an area variance because the essential use of the land is not being changed.”  Esseks, Hefter & Angel, LLP represented the recipients of the variance in the unsuccessful lawsuit brought by an objecting neighbor.