| Weiss v Feldbrand |
| 2008 NY Slip Op 02995 [50 AD3d 673] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Solomon Weiss et al., Respondents, v Irene Feldbrand,Appellant. |
—[*1] Snitow Kanfer Holtzer & Millus, LLP, New York, N.Y. (Stewart J. Epstein and Virginia K.Trunkes of counsel), for respondents.
In an action, inter alia, for specific performance of a contract for the sale of real property, thedefendant appeals, as limited by her brief, from so much of an order of the Supreme Court, KingsCounty (Dabiri, J.), dated February 10, 2006, as denied those branches of her motion which werefor summary judgment dismissing the complaint and to vacate a lis pendens and, in effect, deniedthat branch of her motion which was for summary judgment on her counterclaim, and grantedthat branch of the plaintiffs' cross motion which was for summary judgment directing specificperformance of the contract.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiffs' cross motion which was for summary judgment directing specificperformance of the contract and substituting therefor a provision denying that branch of the crossmotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
Before specific performance of a contract for the sale of real property may be granted, abuyer must demonstrate that it was ready, willing, and able to perform (see Dairo v Rockaway Blvd. Props., LLC,44 AD3d 602 [2007]; Chavez vEli Homes, Inc., 7 AD3d 657, 659 [2004]; Nuzzi Family Ltd. Liab. Co. v NatureConservacy, 304 AD2d 631, 632 [2003]). Here, the plaintiffs failed to establish their primafacie entitlement to judgment as a matter of law, as they did not obtain a mortgage commitmentand their assertion that a relative could supply the funds necessary to close was not substantiatedby any [*2]documentary evidence (see Chernow v Chernow, 39 AD3d684, 686 [2007]; Aliperti v LaurelLinks, Ltd., 27 AD3d 675, 676 [2006]; Internet Homes, Inc. v Vitulli, 8 AD3d 438, 439 [2004]).Moreover, the plaintiffs failed to show that they properly demanded performance of the contractof sale on a specific day (see Decatur[2004] Realty, LLC v Cruz, 30 AD3d 367 [2006]; Cave v Kollar, 296 AD2d 370[2002]). Accordingly, the Supreme Court should have denied that branch of the plaintiffs' crossmotion which was for summary judgment directing specific performance of the contract.
The parties' remaining contentions are without merit. Fisher, J.P., Angiolillo, Balkin andLeventhal, JJ., concur.