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Rovello v. Orofino Realty Co., Inc.

40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970 (1976)

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Rovello v. Orofino Realty Co., Inc.

New York Court of Appeals
40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970 (1976)

Facts

Nella Nicastro (defendant) agreed to sell her late husband’s insurance business and related real estate to Michael Rovello (plaintiff) and a since-deceased copurchaser. The deal involved the separate transfers of the insurance business, the building and land on which the insurance business was located, and the outstanding stock in Orofino Realty Company, Inc. (Orofino) (defendant), whose only asset was improved real estate next to the insurance business. The first two transfers were completed, but the Orofino sale was not. Rovello sued Orofino and Nicastro, seeking specific performance of their agreement to sell Orofino to Rovello. Orofino and Nicastro moved to dismiss the complaint pursuant to Civil Practice Law and Rules (CPLR) § 3211(c). In support of their dismissal motion, Orofino and Nicastro submitted affidavits asserting that Rovello never paid the $5,700 down payment required by the Orofino sales agreement. Rovello submitted an opposing affidavit from his attorney, who did not address the down payment issue. The supreme court denied the motion to dismiss. The appellate division reversed. Rovello appealed, contending that he could explain why he was excused from making the down payment.

Rule of Law

Issue

Holding and Reasoning (Per curiam)

Dissent (Wachtler, J.)

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