Fraeyman v. MSR Development, Ltd. — 124 A.D.2d 699

Majority

p. 699

Frank Fraeyman et al., Appellants, v MSR Development, Ltd., Respondent.

The appeal from the intermediate order has been dismissed, since the right to separately appeal therefrom was extinguished upon the entry of the judgment (see, Matter of Aho, 39 NY2d 241 , 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment.

p. 700

Special Term properly granted the motion of the defendant builder and seller for summary judgment dismissing the plaintiffs’ complaint. The contract entered into by the parties provided that in the event of a default by the plaintiffs purchasers, the seller would be entitled to keep any funds paid pursuant to the contract. Despite the purchasers’ contentions to the contrary, we are in agreement with Special Term that the two letters exchanged between the parties did not modify the contract.

When the provisions of a contract are clear and unambiguous, the interpretation thereof is a question of law, and effect must be given to the parties’ expressed intent (see, Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456 ). Since there is no genuine dispute with respect to the plaintiffs’ default, Special Term properly granted the defendant’s motion for summary judgment and dismissed the plaintiffs’ complaint (see, Mader v Mader, 101 AD2d 881 ). Mollen, P. J., Brown, Weinstein and Rubin, JJ., concur.

Cases cited

In re Aho 39 NY2d 241 N.Y. 1976-04-06 at 248 p. 699
Bethlehem Steel Co. v. Turner Construction Co. 2 NY2d 456 N.Y. 1957-03-08 p. 700