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ZL ELMHURST, LLC v. SUNSHINE ELMHURST REAL ESTATE

Index No. 650163/21. Appeal No. 15511-15511A. Case Nos. 2021-02702, 2021-04017.

203 A.D.3d 534 (2022)

161 N.Y.S.3d 779

2022 NY Slip Op 01761

ZL Elmhurst, LLC, Respondent-Appellant, v. Sunshine Elmhurst Real Estate, Appellant-Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided March 15, 2022.

Attorney(s) appearing for the Case

Meister Seelig & Fein LLP, New York (Howard S. Koh of counsel), for appellant-respondent.

Ganfer Shore Leeds & Zauderer LLP, New York (Steven J. Shore of counsel), for respondent-appellant.

Concur—Webber, J.P., Moulton, Kennedy, Mendez, Pitt, JJ.

The terms of the parties' purchase agreement unambiguously provided that a condition precedent to closing was issuance of a rezoning of the property, defined to mean "residential with a commercial overlay," and that in the event that such rezoning was not issued in a specified time, plaintiff was entitled to terminate the agreement and be refunded the down payment (see Skanska USA Bldg. Inc. v Atlantic Yards B2 Owner, LLC, 31 N.Y.3d 1002

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