On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-2697-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Winkelstein.
Following a bench trial, plaintiff appeals from Judge Costello's August 28, 2008 order, supported by a written opinion of that date, dismissing plaintiff's complaint with prejudice.
Plaintiff, a limited liability company whose two partners were Alphonso Carrino and Anthony Carrino, was the seller of condominium units at 69 Franklin Street, Jersey City. Plaintiff and defendant, Joseph G. Catalano, entered into a contract of sale (the contract) in which defendant agreed to purchase condominium Unit 2A for $305,000. Defendant signed the contract on April 24, 2006, and Alphonso Carrino signed it on behalf of plaintiff on April 27, 2006.
Paragraph eleven of the contract provided, in part:
Once the Seller has declared the condominium effective, if the Seller is not able for reasons beyond its control to deliver the Deed on the anticipated date of closing, the Seller may postpone the closing for up to one hundred eighty (180) days. If, after this period has expired, the Seller is still unable to deliver a Deed for reasons beyond its control, the Buyer or Seller may terminate this Agreement by so notifying the other in writing. If this Agreement is terminated, the Seller will promptly return to the Buyer all deposit monies paid under this Agreement without interest. On return of the deposit monies, neither the Buyer nor the Seller will have any further rights or obligation under this Agreement.
The parties also entered into a rider to the contract, which deleted "one hundred eighty (180) days" from paragraph eleven, and substituted "sixty (60) days" in its stead.
The property never closed, and plaintiff later sold the property to another purchaser for $249,900. Plaintiff instituted this lawsuit against defendant seeking the difference between the purchase price defendant agreed to pay plaintiff for the property, and the sale price of the property, plus "carrying costs from the date of [defendant's] breach up to and including the date of sale, plus interest, costs and attorneys' fees."
Plaintiff's claim revolves around an interpretation of paragraph eleven of the contract. The trial court construed paragraph eleven to mean that not only was plaintiff required to be prepared to go to closing within sixty days, but plaintiff was also required to deliver a deed to defendant within that time. Plaintiff claims it had no obligation to notify defendant of a closing date, or actually close within the sixty-day time frame; plaintiff asserts it simply had "to be able" to or "to be in a position to" deliver a deed upon the expiration of the sixty-day period.
The trial judge rejected that argument, making the following factual findings and legal conclusions:
· Contract of Sale was signed on April 24, 2006 and the 60-day extension period in Paragraph 11 began to run on May 25, ...