DRT Construction Co. v. BH Associates

—Order insofar as appealed from unanimously reversed on the law with costs, motion granted and complaint against defendant Alan Rosenfeld dismissed. Memorandum: Supreme Court erred in denying the motion of Alan Rosenfeld (defendant) for summary judgment dismissing the complaint against him. The record establishes that defendant conveyed property to plaintiff DRT Construction Company, Inc. (DRT) by quitclaim deed and that DRT accepted that conveyance. Under those circumstances, “the terms of the contract concerning the nature and extent of the property conveyed merge into the deed and the contract terms are extinguished upon the closing of title and acceptance of the deed” (Boser v Boser, 237 AD2d 924, 925, lv dismissed 90 NY2d 1008). The contention of DRT that defendant breached the contract by failing to provide it with a warranty deed therefore lacks merit because the terms of the contract were merged into and extinguished by the deed (see generally, Boser v Boser, supra, at 926). DRT’s contention that the quitclaim deed was void because defendant failed to record his deeds to the property is without merit. The failure of defendant to record his deeds to the property did not affect the validity of the conveyance to DRT (see, James v Lewis, 135 AD2d 785). DRT’s reliance on Real Property Law § 291 is misplaced. Pursuant to that section, it is “only when two conveyances purport to convey *784the same property that a subsequent purchaser obtains a priority over an earlier grantee by reason of the priority of the record of the subsequent purchaser’s deed” (92 NY Jur 2d, Records and Recording, § 85, at 234-235). Here, DRT was not a purchaser from the same vendor. Because defendant validly conveyed the property by quitclaim deed, his motion for summary judgment should have been granted. (Appeal from Order of Supreme Court, Erie County, Fahey, J. — Summary Judgment.) Present — Hayes, J. P., Hurlbutt, Balio and Lawton, JJ.