| Decatur (2004) Realty, LLC v Cruz |
| 2010 NY Slip Op 04331 [73 AD3d 970] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Decatur (2004) Realty, LLC, et al., Appellants, v MiriamCruz, Respondent. |
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In an action for specific performance of a contract for the sale of real property, the plaintiffsappeal from a judgment of the Supreme Court, Kings County (Kramer, J.), entered May 13,2009, which, after a nonjury trial, and upon a decision of the same court dated December 5,2007, is in favor of the defendant and against them, dismissing the complaint.
Ordered that the judgment is affirmed, without costs or disbursements.
By contract of sale signed on September 21, 2004 (hereinafter the contract), the plaintiffDecatur (2004) Realty, LLC (hereinafter Decatur), agreed to purchase property located at 1048Decatur Street in Brooklyn (hereinafter the property) from the defendant. Thereafter, aspermitted by the contract, Decatur assigned "all of its right, title, and interest" in the contract tothe plaintiff Brooklyn Decatur, LLC (hereinafter Brooklyn). The contract provided, inter alia,that the closing was to take place at 10 a.m. on or about December 15, 2004.
The closing did not occur on December 15, 2004. Thereafter, by letter dated December 15,2004, the defendant's attorney notified Brooklyn's attorney that the defendant was settingJanuary 14, 2005, as the date for closing and that time was of the essence. Insofar as is relevant,that letter states: "Please be advised that the law date for closing on the . . . contractis January 14, 2005. Unless we have scheduled a firm date for closing of the contract by saiddate [m]y client will deem said contract null and void and will refund the down payment as perthe terms of the contract."
The parties did not close on or before January 14, 2005, and the parties did not mutuallyagree to schedule a closing by that date. Thereafter, by letter dated January 20, 2005, thedefendant's counsel notified the plaintiffs that the defendant had exercised her contractual rightand had canceled the contract. He also returned the down payment. The plaintiffs subsequentlycommenced this action after unsuccessfully trying to persuade the defendant to closenotwithstanding her purported cancellation of the contract. The Supreme Court dismissed thecomplaint after a nonjury trial. We affirm.
"Where a case is tried without a jury, the power of the Appellate Division is as broad as thatof the trial court, and this Court may render the judgment it finds warranted by the facts, [*2]taking into account that in a close case the trial judge had theadvantage of seeing the witnesses" (Musick v 330 Wythe Ave. Assoc., LLC, 41 AD3d 675, 675[2007]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983]). When the parties' original contract for the sale of real property does notmake time of the essence, one party may make time of the essence by giving proper notice to theother party (see e.g. Cave v Kollar, 296 AD2d 370, 371 [2002]; Savitsky vSukenik, 240 AD2d 557, 558 [1997]).
"The notice setting a new date for the closing must (1) give clear, distinct, and unequivocalnotice that time is of the essence, (2) give the other party a reasonable time in which to act, and(3) inform the other party that if [it] does not perform by the designated date, [it] will beconsidered in default" (Nehmadi vDavis, 63 AD3d 1125, 1127 [2009]). Contrary to the plaintiffs' contention, the letter ofthe defendant's counsel dated December 15, 2004, was sufficiently specific to make time of theessence. It notified the plaintiffs that the closing had to take place by January 14, 2005, and if itdid not, the contract would be cancelled. It also afforded plaintiffs a reasonable time in which toperform. Since the plaintiffs failed to show that they properly demanded performance of thecontract prior to that date, or that their failure to close on or before that date was excusable, thedefendant was entitled to cancel the contract (see Smith v Lynch, 50 AD3d 881 [2008]; Weiss v Feldbrand, 50 AD3d 673,674 [2008]; Hand v Field, 15 AD3d542, 543-544 [2005]; Guippone vGaias, 13 AD3d 339 [2004]; Charchan v Wilkins, 231 AD2d 668, 669 [1996];see generally ADC Orange, Inc. vCoyote Acres, Inc., 7 NY3d 484, 489-490 [2006]; cf. Cave v Kollar, 296 AD2d370 [2002]).
The plaintiffs' remaining contentions either are without merit or need not be reached in lightof this determination. Rivera, J.P., Dillon, Florio and Balkin, JJ., concur.