| Marcantonio v Picozzi |
| 2007 NY Slip Op 09563 [46 AD3d 522] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Michael Marcantonio et al., Appellants, v Michael PicozziIII et al., Respondents. |
—[*1] Viola, Benedetti & Azzolini, LLC, New York, N.Y. (Thomas J. Benedetti of counsel), forrespondents.
In an action to recover liquidated damages for breach of a contract for the sale of realproperty, the plaintiffs appeal (1), as limited by their brief, from so much of an order of theSupreme Court, Nassau County (Brennan, J.), dated February 7, 2006, as denied their motion forsummary judgment on the complaint, (2), as limited by their brief, from so much of an order ofthe same court dated June 8, 2006, as granted that branch of the motion of the defendant MichaelPicozzi III which was for leave to serve an amended answer adding a counterclaim for specificperformance and as, upon reargument, adhered to the original determination denying theplaintiffs' motion for summary judgment on the complaint, and (3) from an order of the SupremeCourt, Suffolk County (Pitts, J.), dated January 17, 2007, which granted the defendants' motionfor summary judgment dismissing the complaint and for summary judgment in favor of thedefendant Michael Picozzi III on his counterclaim for specific performance and denied thosebranches of the plaintiffs' cross motion which were for leave to enter a default judgment and forsummary judgment on the complaint.
Ordered that the appeal from the order dated February 7, 2006 is dismissed, as that order wassuperseded by the order dated June 8, 2006 made upon reargument; and it is further,[*2]
Ordered that the appeal from so much of the order datedJanuary 17, 2007, as denied that branch of the plaintiffs' cross motion which was for leave toenter a default judgment is dismissed; and it is further,
Ordered that the order dated June 8, 2006 is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated January 17, 2007 is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the defendants.
The Supreme Court providently exercised its discretion in granting the motion of thedefendant Michael Picozzi III for leave to amend his answer to add a counterclaim for specificperformance (see CPLR 3025 [b]; Olencki v Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med.Ctr., 5 AD3d 644 [2004]; Jordan v Aviles, 289 AD2d 532, 533 [2001]). UponPicozzi's motion for summary judgment on his counterclaim, the plaintiffs cross-moved for leaveto enter a default judgment on the ground that Picozzi served the amended answer beyond the20-day limit previously imposed by the court. On their appeal from the order denying that crossmotion, the plaintiffs failed to include in the record on appeal any of the papers submitted inopposition to their cross motion. Without a complete record, this Court is unable to render aninformed decision on the merits, and thus, the plaintiffs' appeal from so much of the order datedJanuary 17, 2007, as denied that branch of the plaintiffs' cross motion which was for leave toenter a default judgment must be dismissed (see Matison v County of Nassau, 290 AD2d494, 495 [2002]; Singh v Getty Petroleum Corp., 275 AD2d 740 [2000]).
In support of their original motion for summary judgment, and their subsequent crossmotions for summary judgment on the complaint, the plaintiffs asserted that they had sent twoletters which properly gave Picozzi notice that time was of the essence, and that Picozzi breachedthe contract by failing to tender the purchase price by the designated closing date. Because thecontract between the parties did not make time of the essence, the plaintiffs were required to giveclear, distinct, and unequivocal notice to that effect, setting a closing date which allowed Picozzia reasonable time in which to act, and informing Picozzi that he would be considered in default ifhe failed to perform by the designated date (see Guippone v Gaias, 13 AD3d 339, 340 [2004]; Moray vDBAG, Inc., 305 AD2d 472, 472-473 [2003]; Mohen v Mooney, 162 AD2d 664, 665[1990]). The two letters sent by the plaintiffs failed to meet these requirements. The first letterdid not inform Picozzi that he would be considered in default if he failed to tender payment onthe closing date. The second letter, while supplying the language missing from the first letter,was sent too late to allow Picozzi a reasonable time in which to act. Thus, the plaintiffs failed todemonstrate their prima facie entitlement to judgment as a matter of law. Accordingly, summaryjudgment was properly denied to the plaintiffs.
Picozzi established his entitlement to judgment as a matter of law with evidence that he hadsubstantially performed his obligations under the contract and was ready, willing, and able toperform (see EMF Gen. Contr. Corp. vBisbee, 6 AD3d 45, 51 [2004]; Nuzzi Family Ltd. Liab. Co. v Nature Conservacy,304 AD2d 631, 632 [2003]). In opposition, the plaintiffs failed to raise a triable issue of fact,since they made only unsubstantiated allegations of bad faith (see W.W.W. Assoc. vGiancontieri, 77 NY2d 157, 164 [1990]). Accordingly, the Supreme Court properly grantedthe defendants' motion for summary judgment dismissing the complaint and directing specificperformance of the contract of sale.[*3]
The plaintiffs' remaining contentions are without merit.Schmidt, J.P., Rivera, Santucci and Balkin, JJ., concur.