Deuel v. Fleming

Deuel v Fleming

2026 NY Slip Op 30618(U)

February 27, 2026

Supreme Court, Broome County

Docket Number: Index No. EFCA2024001692

Judge: Eugene D. Faughnan

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/300016922024100SCIV.html[03/03/2026 4:01:00 PM]

At a Motion Term of the Supreme Court of

the State of New York held in and for the

Sixth Judicial District at the Broome County

Courthouse, Binghamton, New York, on the

24th day of October 2025.

PRESENT: HON. EUGENE D. FAUGHNAN

Justice Presiding

STATE OF NEW YORK

SUPREME COURT: COUNTY OF BROOME

JOHN DEUEL,

Plaintiff,

DECISION AND ORDER

vs.

Index No.: EFCA2024001692

FINTAN D. FLEMING AND MEREDITH J. FLEMING,

Defendants.

APPEARANCES:

Counsel for Plaintiff: Hinman, Howard & Kattell, LLP

BY: RONALD L. GREENE, ESQ.

80 Exchange Street

Binghamton, NY 13902

Counsel for Defendants: Bond, Schoeneck & King, PLLC

BY: DANIEL J. PAUTZ, ESQ.

One Lincoln Center

Syracuse, NY 13202-1355

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EUGENE D. FAUGHNAN, J.S.C.

Plaintiff John Deuel filed the instant motion seeking summary judgment against

Defendants Fintan D. Fleming and Meredith J. Fleming. In support, Plaintiff filed his affidavit,

dated July 31, 2025, an Attorney Affirmation dated August 12, 2025 (with Exhibit) and a

Memorandum of Law. Defendants filed opposition papers consisting of an Attorney Affirmation

dated October 17, 2025 (with Exhibits) and Affirmations from both Defendants. The parties

appeared for oral argument on the motions. After due deliberation, this Decision and Order

constitutes the determination of this Court. 1

BACKGROUND FACTS

In October 2021, the parties entered into a Purchase and Sale Contract.for the Fleming

Defendants to purchase residential property located at 461 Oquaga Lake Road in Deposit, NY

from Plaintiff Deuel. The parties utilized a standard real estate contract promulgated by the

Greater Binghamton Association of Realtors, Inc. and the Broome County Bar Association. The

purchase price was $650,000 and covered the land and personal property, including a boat,

furniture and furnishings within the home. Defendants paid a $2,500 deposit, leaving a balance

due of $647,500.

The contract contained a buyer's contingency that the Flemings enter "into a bona fide

contract of sale on or before 12/712021" for property the Flemings owned in Skaneateles, NY

[(Contract of Sale, NYSCEF Doc. No. 23 at ,i 4(c)]. The contract between Deuel and Flemings

did not require that th~ Flemings first close on the sale of their other property, but only that they

have a contract to sell their other property by 12/7/2021. ·

The parties' contract also provided for buyer inspection contingencies including a general

home inspection to be obtained within 14 days after the contract date on Flemings' contract for

their other property. (Contract of Sale, NYCEF Doc. No. 23 at ,i 5). Defendants entered into a

contract to sell their Skaneateles property on October 19, 2021, well before the December 7,

2021, deadline. That made the home inspection due by November 2, 2021. It is undisputed that

1 The Court has considered all the papers filed in support and opposition to the motion and cross-motion, as well

as all the other documents contained in the electronic case file.

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Defendants did not schedule an inspection prior to November 2, 2021. However, Defendants did

schedule a general home inspection for December 14, 2021, and informed Deuel of that date.

Deuel did not object, and agreed to meet the Flemings and the home inspector to let them in the

house.

Following the home inspection, Defendants notified Plaintiff that the results were

unsatisfactory, and Defendants wanted to terminate the purchase. Plaintiff refused to release

Defendants from the contract since the home inspection was not obtained in a timely manner.

Plaintiff also refused to return Defendants' deposit.

Subsequently, Plaintiff listed the property for sale and found another buyer. On or about

October 26, 2022, Plaintiff entered into a new c~mtract to· sell the property for $525,000. ·

Plaintiff commenced this action for breach of contract and declaratory judgment,

contending that Defendants failed to obtain an inspection in a timely manner and therefore, could

not use the home inspection as a basis to cancel the contract. Accordingly, Plaintiff argues that

Defendants breached the contract and that Plaintiff is entitled to the difference in the contract

price he had with Defendants ($650,000) and the price he received when he sold the property in

2022 ($527,447.39). Plaintiff has rounded that off to $125,000 and Plaintiff also seeks to have

the deposit money turned over to him. _Essentially, this is a breach of contract claim for failing to

follow through with the purchase of the property. Plaintiff's declaratory judgment cause of

action seeks a determination from the Court that the buyers' deposit should be forfeited and paid

to the Plaintiff.

Defendants filed opposition to the motion for summary judgment and submitted

affidavits of Fintan Fleming and Meredith Fleming. Defendants acknowledge they did not

obtain a general home inspection within 14 days of the contract to sell their other property, but

they were first awaiting various attorney concerns and legal paperwork prior to scheduling the

home inspection. Defendants informed Plaintiff that the sale of the Defendants' other property

was expected to close in early December 2021. In early December, Defendants also contacted

the Deuels about facilitating a home inspection, and Plaintiff did not raise any objection to the

timeliness of the inspection. Defendants argue that the failure to object serves as a waiver by

Plaintiff to insist on a timely inspection. The inspection revealed unknown and undisclosed roof

problems. The Defendants thought they were purchasing property that did not need any repairs,

but based on the inspection results, they decided to terminate the contract. Defendants believe

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that, at the very least, there are material issues of fact regarding Plaintiff's waiver of the

inspection deadline. In addition, they argue there is no evidence of the fair market value at the

time of the alleged breach.

LEGAL DISCUSSION AND ANALYSIS

When seeking summary judgment, "the movant must establish its prima facie entitlement

to judgment as a matter of law by presenting competent evidence that demonstrates the absence

of any material issue of fact" Lacasse v. Sorbello, 121 AD3d 1241, 1241 (3 rd Dept 2014) citing

Alvarez v. Prospect Hosp., 68 NY2d 320,324 (1986) and Winegradv. New York Univ. Med

Ctr., 64 NY2d 851, 853 (1985) (other citation omitted); see Amedure v. Standard Furniture Co.,

125 AD2d 170 (3 rd Dept. 1987); Bulger v. Tri-Town Agency, Inc., 148 AD2d 44 (3 rd Dept. 1989),

app dismissed75 NY2d 808 (1990). Such evidence must be tendered in admissible form.

Zuckerman v. City ofNew York, 49 NY2d 557 (1980); Friends ofAnimals, Inc. v. Associated Fur

Mfrs., 46 NY2d 1065, 1067-1068 (1979). Once this obligation is met, the burden shifts to the

respondent to establish that a material issue of fact exists. Dugan v. Sprung, 280 AD2d 736 (3 rd

Dept. 2001); Sheppard-Mobley v. King, 10 AD3d 70, 74 (2 nd Dept. 2004) aff'd as mod 4 NY3d

627 (2005); 4-lvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. N. Y. Univ. Med Ctr., 64

NY2d 851,853. "When faced with a motion for summary judgment, a court's task is issue

finding rather than issue determination (see, Sillman v. Twentieth Century-Fox Film Corp., 3

NY2d 395, 404 [1957]) and it must view the evidence in the light most favorable to the party

opposing the motion, giving that party the benefit of every reasonable inference and ascertaining

whether there exists any triable issue of fact" Boston v. Dunham, 274 AD2d 708, 709 (3 rd Dept.

2000) (citation omitted); American Food & Vending Corp. v. Amazon.com, Inc., 214 AD3d 1153

(3 rd Dept. 2023). The motion "should be denied if any significant doubt exists as to whether a

material factual issue is present or even if it is arguable that such an issue exists" Haner v. De

Vito, 152 AD2d 896, 896 (3 rd Dept. 1989) (citation omitted); Lacasse v. Sorbello, 121 AD3d

1241; Asabor v. Archdiocese ofN. Y., 102 AD3d 524 (1 st Dept. 2013). It "is not the function of a

court deciding a summary judgment motion to make credibility determinations or findings of

fact" Vega v. Restani Constr. Corp., 18 NY3d 499,505 (2012) (citation omitted); Blackv. Kohl's

Dept. Stores, Inc., 80 AD3d 958 (3 rd Dept. 2011).

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The facts are clear and undisputed that Defendants did not obtain a general home

inspection within the applicable timeframe. The deadline was November 2, 2021, but the

inspection was not done until December 14, 2021. Therefore, unless the deadline was extended,

Defendants could not rely on an untimely general home inspection to terminate the contract.

If Plaintiff waived the time limitation, then Defendants could still obtain a general home

inspection after November 2, 2021, and rely upon the results of that inspection. For reasons set

forth below, the Court does not agree with Defendants' position.

Plaintiff's first cause of action is based on breach of contract for Defendants' refusal to

proceed with the sale. "[T]he essential elements of a cause of action to recover damages for

breach of contract are the existence of a contract, the plaintiffs performance pursuant to the

contract, the [defendants'] breach of its contractual obligations, and damages resulting from the

breach" Carroll v. Rondout Yacht Basin, Inc., 162 AD3d 1150, 1151 (3 rd Dept. 2018) (internal

quotation marks and citation omitted), appeal and Iv dismissed 32 NY3d 1035 (2018).· Plaintiff

submitted a copy of the parties' signed agreement for the sale of the property, and established

that he was ready, willing and able to convey the property at the closing. Defendants did not

follow through with the purchase and Plaintiff ultimately sold the property for less than the

contract price with Defendants. These facts are sufficient to satisfy Plaintiff's prima facie

burden for breach of contract.

Defendants' main challeng~s are to the third and fourth elements for breach of contract:

non-performance of Defendants' obligations and Plaintiff's damage. Defendants contend that

there are material issues of fact with respect to their alleged breach because they believe there

was a waiver of the time limitation for the home inspection, and they further argue that there are

issues of fact with regard to any damages. The Court will focus on those last two elements.

The contract expressly addresses the timing requirement for the home inspection(s) and

states that "[i]n the event any of the following tests and/or inspections which are to be obtained

by the.Buyer are not performed within the time period states, the tests and/or inspections are

deemed waived" [Contract of Sale, NYSCEF Doc. No. 23 at ,r 4(c)]. By not obtaining the home

inspection by November 2, 2021, Defendants waived their right to obtain a pre-closing home

inspection. Notwithstanding the contract language, Defendants argue that Plaintiff, through

words and conduct, waived or extended the inspection deadline, such that Plaintiff should not be

permitted to enforce the time deadline against the Defendants. It is true that "[a] party may

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waive timely performance even where the parties have agreed that time is of the essence" [Allen

v. Kowalewski, 239 AD2d 879,879 (4th Dept. 1997) (citation omitted); Mosdos_Oraysa, Inc. v.

Sausto, 13 AD3d 838 (3 rd Dept. 2004)] and that waiver or modification of the timely

performance may be accomplished by mutual agreement or even by the conduct of a party. See,

Chaves v. Kornfeld, 83 AD3d 522 (1 st Dept. 2011); Kistela v. Ahlers, 22 AD3d 641 (2nd Dept.

2005).

Defendants highlight several factors to show that Plaintiff's actions manifest an

agreement to an extension of time for the home inspection, or that there is at least a triable issue

of fact on that matter. For example, Plaintiff testified that he permitted the Defendants to

conduct a home inspection even though he was aware that the time limitation had been exceeded

following Defendants obtaining a contract for their own property. Plaintiff also met Mr. Fleming

and the home inspector at the property to let them in.

Contrary to Defendants' argument, these actions do not raise a triable issue concernfng

extending the time deadline for obtaining a home inspection. "A waiver is an intentional

relinquishment of a known right and,' as such, must be 'explicit, unmistakable, and unambiguous'

Fahs Constr. Group, Inc. v. State ofNew York, 123 AD3d 1311, 1312 (3 rd Dept. 2014), Iv denied

25 NY3d 902 (2015). It cannot be inferred by a doubtful or equivocal act ... " MLB Constr.

Servs. v. Dormitory Auth. ofN. Y., 194 AD3d 1140, 1141 (3 rd Dept. 2021 ). Here, there is not a

scintilla of evidence to suggest that Plaintiff's actions show an intent to waive the contingency

deadline by permitting an inspection. The fact that Plaintiff permitted the inspection does not

imply that he was extending the 14-day limitation in the contract. In fact, there are other

reasonable explanations or justifications, such as Plaintiff thought Defendants needed an

inspection for insurance reasons or for informational purposes. In addition, Plaintiff was under

no affirmative duty to object to an untimely inspection. There is no language in the contract that

would suggest that failure to object constitutes a waiver of the time deadlines. Plaintiff's

actions/inactions do not rise to the level of an explicit, unmistakable and unambiguous waiver of

his right to insist on Defendants' obtaining a home inspection in a timely manner. This Court

concludes that Defendants have not raised a triable issue of fact on the waiver claim, or on the

issue of Defendants' unexcused failure to perform under the contract.

The next issue to be considered is the question of damages. Plaintiff claims that his

damages are calculated by the difference in the amount of the contract he had with Defendants

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and the amount he ultimately received when he sold the property. A property seller's damages

for a buyer's breach can be measured "as 'the difference ... between the contract price and the

fair market value of the property at the time of the breach' (White v Farrell, 20 NY3d 487,489,

987 NE2d 244,964 NYS2d 467 [2013]). Use of the property's resale value as evidence of the

fair market value at the time of the breach is appropriate where ... the time between the default

and resale is minimal and market conditions have remained relatively stable" 12 Baker Hill Rd.,

Inc. v. Miranti, 130 AD3d 1425, 1427 (3 rd Dept. 2015). Plaintiff relies upon the sale of the

property in October 2022 as proof of the value of the property at the time of Defendants' breach,

and hence a measure of his damages. Although a subsequent sale may be the best evidence of

the fair market value at the time of the breach, the Court is unable to make that finding in this

case at the present time. There are facts and circumstances that need to be considered in

analyzing whether the sale in October 2022 (10 months after the breach) is an accurate measure

of the property's fair market value in December 2021. In his deposition, Plaintiff acknowledged

that he chose to rent th~ property following the failed sale in December 2021 and that during that

approximately one-year time period, the market changed leading to a decrease in property

values. (John Deuel Deposition Transcript, pp. 76-77). Mrs. Deuel also testified that the

property was sold to a ~hildhood friend and that the new buyer probably paid less than the

property was worth. (Janet Deuel Deposition Transcript at p. 30; John Deuel Deposition

Transcript pp. 73-74). Those two factors present a reasonable argument that the 2022 sale does

not, or may not, fairly establish the property's fair market value in December 2021.

In White v. Farrel, supra, the Court of Appeals specifically noted various (but not

exclusive) factors to be considered, including the extent to which the later sale indicates the fair

market value at the time of the breach, "given the lapse of time ... and any differences in market

conditions and contract terms; whether the [seller] made sufficient efforts to mitigate ... which is

relevant to any weight to be given the resale price as a ineasure of fair market value at the time of

the breach" White v. Farrell, 20 NY3d at 501-502. Implicit in that evaluation would be

consideration of whether the ultimate sale was a true arm's length transaction. There is evidence

in this case to suggest that it was not an arm's length transaction. If it was not, then the price paid

in October 2022 might not reflect the December 2021 fair market value. On the whole, there are

questions of fact which preclude the Court from making a determination as to Plaintiffs damage,

if any.

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Plaintiff has established that Defendants' refusal to proceed with the closing was in

violation of the terms of contract. Therefore, Plaintiff is entitled to summary judgment on the

issue of liability. However, since there is still a question regarding fair market value there must

be a hearing/Inquest to determine if there has been any resulting damage to Plaintiff.

Lastly,·the Court now turns to Plaintiff's motion seeking an Order declaring that Plaintiff

is entitled to the $2,500 being held in escrow and directing Defendants to release that money.

The contract provides that "[i]f Buyer fails to perform Buyer's obligations under this Contract,

Buyer shall forfeit the deposit and Seller may also pursue other legal right~ Seller has against the

Buyer" (Contract of Sale, NYCEF Doc. No. 23 at ,r 23). Although the question of damages must

still be resolved, the evidence establishes that Defendants did not obtain a general home

inspection in a timely manner and could not rely upon that contingency to justify non-

performance. Therefore, Defendants failed to perform under the contract and have forfeited the

deposit. Accordingly, Plaintiff is entitled to declaratory judgment with regard to the deposit.

CONCLUSION

Based on the foregoing, the Court concludes that Defendants did not obtain a general

home inspection in a timely manner, and that their untimely home inspection cannot be used as a

basis to terminate the contract. Plaintiff's acquiescence in permitting a late inspection does not

amount to a waiver. Therefore, Defendant is bound by the terms of the contract. Additional

evidence is necessary to determine the amount of Plaintiff's damages, if any. However, due to

Defendants refusal to complete the purchase, Plaintiff is entitled to the security deposit currently

being held in escrow.

Accordingly, it is hereby

ORDERED, that Plaintiff's motion for summary judgment for breach of contrac~ is

GRANTED WITH REGARD TO LIABILITY ONLY; and it is further

ORDERED, that this matter is being referred to a Judicial Hearing Officer for

proceedings consistent with this Decision an Order; a separate Order to Hear and Determine will

be issued by this Court, and it is furth~r

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ORDERED, that Plaintiffs motion for declaratory judgment that he is entitled to deposit

money being held in escrow is GRANTED, and the $2,500 is to be paid over to Plaintiff.

Any issues raised by the parties and not specifically addressed herein have been found to be

without merit.

This constitutes the Decision and Order of this Court.

Dated: February 27 , 2026

Binghamton, New York

Supreme Court Justice

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