On November 7, 2005, Briarwood signed an agreement to sell Toll Brothers a planned 66-acre, 41-lot subdivision property in the village of Pomona, New York, for $13,325,000. The agreement expressly conditioned Toll's payment obligations on Briarwood's delivery, at its sole cost and expense, of final, unappealable subdivision approval of the property in accordance with the subdivision plan and the satisfaction by Briarwood of any conditions of the final approval, such that upon posting of customary security and payment of application and inspection fees by Toll Brothers, the company would be able to file the plat and commence infrastructure improvements and apply for and obtain building permits.
The agreement stated that the conditions set forth in the approval shall be subject only to "such conditions as Toll may approve at its sole discretion, which approval shall not be unreasonably withheld with respect to those modifications which do not have a material adverse effect on the proposed development." Closing was to take place 30 days following the date upon which all conditions to closing set forth in the approval had been satisfied and "[i]f on or before the date of closing all contingencies and conditions specified herein are not or cannot be satisfied, then Toll shall have the option of . . . cancelling this Agreement." On January 12, 2006, Briarwood obtained preliminary subdivision approval of the property from the Pomona Planning Board. Final subdivision approval of the property, however, was subject to a number of conditions. By letter dated December 22, 2006, Toll notified Briarwood that five of the conditions would have a material adverse effect on the proposed development and that it would not accept them.
Toll Brothers claimed that Briarwood's December 28, 2006, response to Toll's December 22, 2006, letter was an anticipatory repudiation of the agreement. In response to Toll's five objections, Briarwood (1) offered to post a bond to cover the potential cost of repaving Klinger Court; (2) pointed out that the steep slope condition restated the Village Code requirement to secure a site development plan permit for each lot within a subdivision; (3) agreed to pay any cost differential resulting from use of a 4 percent rather than a 10 percent grade for the cul-de-sac; (4) proposed two alternative solutions to the drainage system problem; and (5) pointed out that the landscaping plan condition, like the steep slope condition, restated a Village Code requirement. Toll Brothers treated the letter from Briarwood as an anticipatory repudiation of the contract and refused to complete the transaction, so Briarwood sued for breach of contract. Both parties filed motions for summary judgment.
The district found that no reasonable reader could construe Briarwood's response as a positive and unequivocal repudiation of the agreement and that it did not signal that Briarwood was unwilling to comply with ¶ 16(a)(iii) or any other provision of the agreement. The court therefore granted summary judgment to Briarwood. Toll Brothers appealed.
How do you believe the court of appeals ruled, and why? [Briarwood Farms, Inc. v. Toll Bros., Inc., 452 Fed. Appx. 59, 2011 WL 6415185 (C.A.2 (N.Y.) 2011).]