| Klaiber, LLC v Coon |
| 2008 NY Slip Op 01055 [48 AD3d 856] |
| February 7, 2008 |
| Appellate Division, Third Department |
| Klaiber, LLC, Appellant, v Richard W. Coon et al.,Respondents. |
—[*1] Friedman & Molinsek, P.C., Delmar (Julie N. Perez of counsel), for respondents.
Peters, J. Appeal from an order of the Supreme Court (Hummel, J.), entered August 30, 2007in Columbia County, which denied plaintiff's motion for summary judgment.
In May 2006, the parties entered into a contract whereby defendants agreed to sell plaintiffcertain real property with plaintiff giving a down payment of $35,000 upon execution of thecontract. A subsequent title search uncovered four judgments recorded against defendant RichardW. Coon. Defendants were involved in divorce proceedings and three of the judgments were infavor of defendant Kimberly A. Coon and the fourth was in favor of her attorney. Thesejudgments remained unsatisfied and a scheduled closing date of July 6, 2006 was adjourned.Plaintiff was thereafter unable to secure a closing date. In November 2006, plaintiff notifieddefendants that it had decided not to go forward with the transaction and requested its deposit bereturned.
On December 4, 2006, Kimberly Coon's attorney notified plaintiff that they were prepared tooffer clear title and proposed a closing date of December 13, 2006. Plaintiff thereaftercommenced this action on December 6, 2006 to recover its deposit and other expenses related toperformance of the contract. On December 13, 2006, Kimberly Coon and her attorney, alongwith Richard Coon's attorney, showed up at the office of plaintiff's attorney purportedly ready tosatisfy the liens and to close on the sale. Plaintiff did not attend and subsequently moved forsummary judgment, limiting its recovery to the return of its deposit. Supreme Court [*2]denied the motion, prompting this appeal.
Plaintiff argues that defendants' failure to set a closing date due to defects in the titleconstituted a breach of the contract, entitling it to summary judgment. Defendants contend thatplaintiff's failure to tender performance and demand good title barred its recovery. In instanceswhere the defects in title are curable, in order "to place a vendor of realty under a contract of salein default for a claimed failure to provide clear title, the purchaser normally must first tenderperformance himself [or herself] and demand good title" (Willard v Mercer, 83 AD2d656, 657 [1981], affd 58 NY2d 840 [1983]; accord Gentile v Sang Y. Kim, 101AD2d 939, 940 [1984]). However, when the vendor is given notice of the defect prior to thescheduled closing date and does nothing to correct it until after the closing date, the purchaserneed not tender performance as such tender would be meaningless (see Gentile v Sang Y.Kim, 101 AD2d at 940). Here, as the judgments against the property were held by KimberlyCoon and her attorney, defendants were aware of the defects in the title prior to closing and theclosing was adjourned due to their failure to satisfy them. Furthermore, the record reveals thatdefendants took no action to correct the defects until December 2006, at the earliest. Therefore,we find that plaintiff was not required to tender performance.
However, regardless of the timing of the notice of the defects, in these instances the vendeemust provide the vendor with reasonable time to provide good title (see Gentile v Sang Y.Kim, 101 AD2d at 940; Willard v Mercer, 83 AD2d at 657). Defendants had ampleopportunity to so provide. Defendants advised plaintiff that they would not be able to providegood title prior to the July 6, 2006 closing and, although they claimed to offer clear title as ofDecember 13, 2006, the defects were not actually cured until June 2007, almost one year after theadjourned closing date. Given the fact that defendants failed to provide clear title in a reasonabletime, we find that summary judgment should have been granted to plaintiff.
Mercure, J.P., Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the order isreversed, on the law, with costs, motion granted and summary judgment awarded to plaintiff.