Tri State Constr., LLC v Vaij Realty Assoc.

2007 NY Slip Op 08388 [45 AD3d 328]

November 8, 2007

Appellate Division, First Department

As corrected through Wednesday, January 16, 2008

Tri State Construction, LLC, Appellant, v Vaij RealtyAssociates, Respondent.

—[*1]John DeMaio, New York City, for appellant.

Law Offices of Jeffrey S. Dweck, P.C., New York City (Jeffrey S. Dweck of counsel), forrespondent.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered August 17, 2006,which, in an action for specific performance, granted defendant seller's motion to dismiss thecomplaint, unanimously affirmed, with costs.

The amendment to the contract that plaintiff buyer argues was intended to extinguish thetime of the essence clause invoked by defendant does not expressly revoke such clause, and wasproperly construed by the motion court in a manner that was consistent with such clause (see V.C. Vitanza Sons v New York CityHous. Auth., 7 AD3d 398 [2004]). We have considered plaintiff's other arguments andfind them unavailing. Concur—Andrias, J.P., Saxe, Nardelli, McGuire and Malone, JJ.