| Zeitoune v Cohen |
| 2009 NY Slip Op 07627 [66 AD3d 889] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Elie Zeitoune et al., Respondents, v Liat Cohen et al.,Appellants. |
—[*1] Michael J. O'Rourke, P.C., Brooklyn, N.Y., for respondents.
In an action, inter alia, for specific performance of a contract for the sale of real property, thedefendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court,Kings County (Held, J.), dated April 25, 2008, as granted that branch of the plaintiffs' motionwhich was for summary judgment on the cause of action for specific performance, and deniedtheir cross motion for summary judgment dismissing the complaint and cancelling a notice ofpendency filed by the plaintiffs in connection with the real property, and (2) from a judgment ofthe same court entered August 21, 2008, as amended September 5, 2008, which, upon the order,is in favor of the plaintiffs and against them directing specific performance of the contract. Thenotice of appeal from the order is deemed also to be a notice of appeal from the judgment, asamended (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment, as amended, is reversed, on the law, the plaintiffs' motion forsummary judgment on the cause of action for specific performance is denied, the defendants'cross motion for summary judgment dismissing the complaint and cancelling the notice ofpendency is granted, the complaint is dismissed, and the order is modified accordingly; and it isfurther,
Ordered that one bill of costs is awarded to the appellants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment, as amended (see CPLR 5501[a] [1]).
In early 2005 the plaintiffs (hereinafter the purchasers) signed a contract to purchaseresidential real property owned by the defendants (hereinafter the sellers). The contract was atfirst entered [*2]into between the purchasers and the defendantLiat Cohen, but was later, in effect, modified to include the defendant Jack Cohen as a seller.The contract provided that, in the event that the sellers were unable to deliver marketable title,the purchasers had the option either to rescind the contract or accept whatever title the sellerscould deliver. When the purchasers learned that there was a lien against the propertyrepresenting a substantial judgment against Jack Cohen, the sellers insisted that the judgment hadbeen discharged in bankruptcy. After making certain attempts to clear the lien, the sellersdeclared that they were not obligated to take any further steps, and tendered the down paymentto the purchasers, who refused to accept it. Rather, the purchasers insisted that the contractrequired the sellers to deliver title clear of the lien, and demanded that the sellers set a closingdate. No closing date was set, by either the purchasers or the sellers.
The purchasers commenced this action, seeking, inter alia, specific performance anddamages for breach of contract. The purchasers moved for summary judgment on the cause ofaction for specific performance, and the sellers cross-moved to dismiss the complaint based on adefense founded on documentary evidence (see CPLR 3211 [a] [1]), for summaryjudgment dismissing the complaint, and to cancel a notice of pendency filed by the plaintiffs inconnection with the real property. The Supreme Court granted the purchasers' motion and deniedthe sellers' cross motion, and judgment was entered in favor of the purchasers, directing specificperformance of the contract. We reverse.
A party seeking summary judgment must submit proof in evidentiary form sufficient toestablish its prima facie entitlement to judgment as a matter of law (see Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). The moving party's failure to meet its burdenrequires denial of the motion "regardless of the sufficiency of the opposing papers" (Smalls v AJI Indus., Inc., 10 NY3d733, 735 [2008]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Smith v Tenshore Realty, Ltd., 31AD3d 741, 742-743 [2006]). A party seeking specific performance of a real estate contractmust establish that it was ready, willing, and able to perform its obligations under the contract"on the original law day or, if time is not of the essence, on a subsequent date fixed by the partiesor within a reasonable time thereafter" (Ferrone v Tupper, 304 AD2d 524, 525 [2003];see Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997, 998 [1983]; Kabro PM, LLC v WGB Main St., LLC,52 AD3d 659 [2008]; Stojowski v D'Sa, 28 AD3d 645 [2006]; Internet Homes, Inc. v Vitulli, 8 AD3d438, 439 [2004]). The same rule applies with respect to claims for damages for breach of acontract for the sale of real property (see Stojowski v D'Sa, 28 AD3d at 645;Buoninfante v Legacy Dev. USA Corp., 306 AD2d 511 [2003]).
An anticipatory breach by the party from whom specific performance is sought excuses theparty seeking specific performance from tendering performance, but not from the requirementthat the party seeking specific performance establish that he or she was ready, willing, and ableto perform (see Eivers v DreamworksConstr., Inc., 48 AD3d 625, 625-626 [2008]; Fridman v Kucher, 34 AD3d 726, 727 [2006]; McCabe v Witteveen, 34 AD3d652, 653-654 [2006]; Johnson v Phelan, 281 AD2d 394, 395 [2001]; Cohn vMezzacappa Bros., 155 AD2d 506 [1989]; Zev v Merman, 134 AD2d 555, 557[1987], affd 73 NY2d 781 [1988]). By contrast, a party seeking damages for breach of acontract for the sale of real property need not establish that he or she was ready, willing, and ableto perform on the closing date when there has been an anticipatory breach by the other party (see Peek v Scialdone, 56 AD3d743, 744 [2008]; Karo v Paine,55 AD3d 679, 680 [2008]; Somma v Richardt, 52 AD3d 813, 814 [2008]).
Here, the purchasers submitted no proof that they were ready, willing, and able to fulfill theirobligations under the contract on the law day, inasmuch as it is undisputed that the parties neverscheduled a "law day," with time made of the essence. Consequently, the Supreme Court shouldhave denied the purchasers' motion for summary judgment on the cause of action for specificperformance, and it should have granted that branch of the sellers' cross motion which was forsummary judgment dismissing the cause of action for specific performance (see Weiss v Feldbrand, 50 AD3d673, 674 [2008]; Decatur[2004]Realty, LLC v Cruz, 30 AD3d 367 [2006]; Cave v Kollar, 296 AD2d 370, 371[2002]; Hamburger v Rieselman, 206 AD2d 822, 824 [1994]; 3M Holding Corp. vWagner, 166 AD2d 580, 582 [1990]; cf. Zev v Merman, 134 AD2d 555, 557-558[1987], affd 73 NY2d 781 [1988]).
The sellers also established their prima facie entitlement to judgment as a matter of lawdismissing the cause of action to recover damages for breach of contract. In opposition, thepurchasers [*3]failed to raise a triable issue of fact.
Accordingly, that branch of the sellers' cross motion which was for summary judgmentdismissing the complaint should have been granted, and the notice of pendency should have beencancelled as a consequence. Fisher, J.P., Covello, Angiolillo and Roman, JJ., concur.