| Dixon v Malouf |
| 2010 NY Slip Op 00920 [70 AD3d 763] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Robert J. Dixon, Respondent, v Waldy Malouf,Appellant. |
—[*1] Lynn, Gartner & Dunne, LLP, Mineola, N.Y. (Kenneth L. Gartner and Robert P. Lynn, Jr.,of counsel), for respondent.
In an action, inter alia, for specific performance of a contract for the sale of an interest in alimited liability company, the defendant appeals from so much of an order of the Supreme Court,Nassau County (Iannacci, J.), entered September 29, 2008, as granted that branch of theplaintiff's motion which was for summary judgment on the cause of action for specificperformance.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment on the cause of action forspecific performance is denied.
The Supreme Court should have denied that branch of the plaintiff's motion which was forsummary judgment on the cause of action for specific performance. A party who seeks specificperformance must prove that he or she has substantially performed his or her contractualobligations and that he or she is ready, willing, and able to perform those obligations not yetperformed (see Israel v Charnews,46 AD3d 753, 754 [2007]; Johnson v Phelan, 281 AD2d 394, 395 [2001]). "Ananticipatory breach by the party from whom specific performance is sought excuses the partyseeking specific performance from tendering performance, but not from the requirement that theparty seeking specific performance establish that he or she was ready, willing, and able toperform" (Zeitoune v Cohen, 66AD3d 889, 891 [2009]; seeFridman v Kucher, 34 AD3d 726, 727 [2006]).
Here, the plaintiff failed to make a prima facie showing that he was ready, willing, and ableto perform his obligations in connection with the purchase of the defendant's interest in thesubject limited liability company (see generally Zuckerman v City of New York, 49NY2d 557, 562 [1980]). The evidence submitted by the plaintiff failed to establish the absence oftriable issues of fact regarding, among other things, whether he had the funds necessary topurchase the defendant's interest (see Johnson v Phelan, 281 AD2d at 395). Although theplaintiff proffered an affirmation from his attorney indicating that such funds had been depositedinto his attorney's escrow account by October 29, 2007, he also proffered correspondence fromthe defendant's attorney indicating that the plaintiff did not have such funds by that date.Moreover, the correspondence from the [*2]defendant's attorneyindicated that the plaintiff had not obtained documentation necessary for the closing as ofNovember 9, 2007. Accordingly, the Supreme Court should have denied that branch of theplaintiff's motion which was for summary judgment on the cause of action for specificperformance (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Inlight of this determination, we need not examine the sufficiency of the defendant's oppositionpapers (id.; see Rapps v City ofNew York, 54 AD3d 923, 924 [2008]).
In light of the foregoing, we need not reach the defendant's remaining contentions. Dillon,J.P., Florio, Leventhal and Roman, JJ., concur.