Justice Martin Shulman
Plaintiff company bought a Manhattan property in 2006. A short time later, a dispute arose between plaintiff and its neighbor, Pennbus Realties. Pennbus began an action for adverse possession of a portion of the property. By an agreement of sale, plaintiff then contracted to sell the property to buyer defendant company. A non-party individual signed the agreement on defendant’s behalf as “V.P.” Plaintiff later argued that it validly terminated the agreement, that defendant’s failure to make an election pursuant to an exculpation clause constituted a breach of contract entitling plaintiff to cancel the agreement, and that the agreement is unenforceable given the non-party’s lack of authority to sign it on defendant’s behalf. The court dismissed the complaint, finding that the exculpation clause’s plain language does not grant plaintiff the right to terminate the contract. The court determined that the exculpation clause instead granted defendant the right to elect its remedy where, as in this case, plaintiff was unable to convey good and marketable title at closing.
