In Torres v. D’Alesso,1 the Appellate Division, First Department, split 3-2 on the issue of whether an integrated agreement for the sale of real estate could be avoided because an alleged orally agreed-upon condition precedent had not been satisfied. Lengthy majority and dissenting opinions showed sharp differences on the issue.
Background
In Torres, Buyer, with the permission of his attorney, met with Seller’s attorney. Buyer claimed that he informed Seller’s attorney that he was waiting to hear about a home equity line of credit that would be used to fund the contract deposit and that he did not then have funds to deliver a good check for the deposit. Buyer purportedly asked if he could deliver a check that Seller’s attorney, who was acting as escrowee, would hold without depositing until hearing further from Buyer. Buyer claimed that in reliance upon Seller’s attorney’s agreement to do so, he signed the contract and gave it to Seller’s attorney together with an unfunded check.
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