| Eivers v Dreamworks Constr., Inc. |
| 2008 NY Slip Op 01496 [48 AD3d 625] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Michael Eivers et al., Respondents, v DreamworksConstruction, Inc., Appellant. |
—[*1] Jay A. Marshall, Garden City, N.Y., for respondents.
In an action, inter alia, to compel specific performance of a contract for the sale of realproperty, the defendant appeals from an order of the Supreme Court, Nassau County (Cozzens,Jr., J.), dated October 2, 2006, which denied its motion for summary judgment dismissing thefirst cause of action seeking specific performance.
Ordered that the order is affirmed, with costs.
The defendant Dreamworks Construction, Inc. (hereinafter the seller) and the plaintiffsMichael Eivers and Shari Bardash-Eivers (hereinafter the buyers) entered into a contract for thesale of real property, on which a single-family modular home was to be built. The closing wasdelayed due to disagreements between the parties over contractual obligations, and the sellerscheduled a "time of the essence" closing, which the buyers did not attend. The buyers thencommenced this action, seeking, inter alia, specific performance of the contract. The sellermoved for summary judgment dismissing the cause of action seeking specific performance. TheSupreme Court denied the seller's motion, concluding that triable issues of fact existed as towhether it had abided by the terms of the contract. We affirm.
The seller made a prima facie showing of its entitlement to judgment as a matter of law bysubmitting proof that the buyers failed to appear at a time of the essence closing (see Moutafis v Osborne, 7 AD3d686 [2004]). In response, the buyers demonstrated that they had the financial capacity toperform under the contract (see MadisonEquities, LLC v MZ Mgt. Corp., 17 AD3d 639 [2005]; Johnson [*2]v Phelan, 281 AD2d 394 [2001]), and raised a triable issue offact as to whether the seller anticipatorily breached the contract by refusing to construct the homein accordance with the contract specifications and demanding payment for an amountsubstantially above the contract price, thus excusing the tender of their performance (seeHuntington Min. Holdings v Cottontail Plaza, 60 NY2d 997 [1983]; Madison Equities,LLC v MZ Mgt. Corp., 17 AD3d at 640; Madison Invs. v Cohoes Assoc., 176 AD2d1021 [1991]; Iannelli Bros. v Muscarella, 30 AD2d 698 [1968], affd on op below24 NY2d 779 [1969]). Accordingly, the Supreme Court properly denied the seller's motion forsummary judgment dismissing the first cause of action seeking specific performance. Prudenti,P.J., Lifson, Covello and Balkin, JJ., concur.