| Nowak v Rametta |
| 2007 NY Slip Op 06963 [43 AD3d 1120] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Antoni Nowak et al., Appellants, v Sebastian Rametta etal., Respondents. |
—[*1] Jack J. Stern, Staten Island, N.Y. (Robert A. Mulhall of counsel), for respondents.
In an action for specific performance of a contract for the sale of real property or, in thealternative, for the return of the down payment in the sum of $300,000, the plaintiffs appeal from(1) an order of the Supreme Court, Richmond County (Gigante, J.), dated September 22, 2006,which denied their motion, denominated as one to vacate a judgment of the same court datedJune 28, 2006, in favor of the defendants and against them in the principal sum of $99,012 foruse and occupancy of the subject premises, but which was, in actuality, a motion for leave torenew and reargue their opposition to the defendants' prior motion for leave to enter a judgmentagainst them for use and occupancy, and (2) an order of the same court dated November 2, 2006,which granted the defendants' motion for summary judgment dismissing the complaint andcanceled a notice of pendency.
Ordered that the appeal from so much of the order dated September 22, 2006, as denied thatbranch of the plaintiffs' motion which was for leave to reargue the defendants' motion for leave toenter a judgment for use and occupancy is dismissed, without costs or disbursements, on theground that no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated September 22, 2006 is affirmed insofar as reviewed, withoutcosts or disbursements; and it is further,[*2]
Ordered that the order dated November 2, 2006 ismodified, on the law, by deleting the provision thereof granting that branch of the defendants'motion which was for summary judgment dismissing the second cause of action for return of theplaintiffs' down payment in the sum of $300,000, and substituting therefor a provision denyingthat branch of the motion, and, upon searching the record, awarding summary judgment in favorof the plaintiffs on the second cause of action; as so modified, the order dated November 2, 2006is affirmed, without costs or disbursements.
The plaintiffs' motion, denominated as one to vacate a judgment dated June 28, 2006, was, inactuality, a motion for leave to renew and reargue their opposition to the defendants' motion forleave to enter a judgment for use and occupancy, which was determined in an order dated March24, 2006. The affidavit of the plaintiff Alisa Fialovskaya submitted on the motion for leave torenew and reargue constituted evidence that could have been submitted in opposition to thedefendants' original motion for leave to enter a judgment for use and occupancy (seeCPLR 2221 [e] [3]). Accordingly, leave to renew was properly denied (see State Farm Mut.Auto Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]). Thatportion of the order which denied reargument is not appealable (see RCN Constr. Corp. v Fleet Bank,N.A., 34 AD3d 776, 778 [2006]). The plaintiffs withdrew their appeal from the orderdated March 24, 2006, granting the defendants leave to enter a judgment for use and occupancy,and never filed a notice of appeal from the judgment dated June 28, 2006. Accordingly, thepropriety of that judgment is not before this Court.
With respect to the order dated November 2, 2006, granting the defendants' motion forsummary judgment dismissing the complaint, the issues are whether the plaintiffs are entitled tospecific performance of a contract to sell real property, or, in the alternative, whether they areentitled to the return of their down payment. The contract, which was executed in September2003, stated that a survey of the property was to be forwarded to the plaintiffs under separatecover. Thereafter, the parties agreed to close on July 19, 2004, "time being of the essence."
On July 14, 2004 the defendants forwarded to the plaintiffs the survey, which indicated thatportions of the property were between two and three feet shorter than the description of theproperty included in the contract of sale, which was more than the 12-inch discrepancy permittedby the terms of the contract of sale. The contract provided that the plaintiffs were required tonotify the defendants of any objections to title in writing not less than seven days before theclosing. However, since the defendants provided the plaintiffs the information forming the basisfor the plaintiffs' objections to title only five days before the time of the essence date, theplaintiffs did not and could not comply with this provision.
Fialovskaya, as assignee of the contract of sale, acknowledged at her deposition that she didnot have the funds to purchase the property on the "time of the essence" law day of July 19, 2004.Since she was not ready, willing, and able to perform the contract on the law day, the cause ofaction for specific performance was properly dismissed (see Realty Equities, Inc. v Walbaum, Inc., 18 AD3d 531 [2005]; Madison Equities, LLC v MZ Mgt.Corp., 17 AD3d 639, 640 [2005]; Moutafis v Osborne, 7 AD3d 686, 687 [2004]; L.I.C.Commercial Corp. v Zirinsky, 142 AD2d 713, 715 [1988]).
The defendants contended that they were ready to close on July 19, 2004, on two hoursnotice, and at 3:30 p.m. (less than two hours before the close of the business day), their attorneyspoke to the plaintiffs' attorney, who confirmed that the plaintiffs were not ready to close on thatday. However, since the defendants were unable to convey marketable title to the plaintiffs [*3]in accordance with the contract provisions on the final day set bythe defendants for the closing, the plaintiffs were entitled to the return of their down payment(see Calverton Assoc. v Kempermann, 262 AD2d 262 [1999]; Gargano v Rubin,200 AD2d 554, 555-556 [1994]; Meadows v Michel, 144 App Div 927 [1911]).
The parties' remaining contentions either are without merit or need not be addressed in lightof our determination. Crane, J.P., Goldstein, Skelos and Carni, JJ., concur.