| Pesa v Yoma Dev. Group, Inc. |
| 2010 NY Slip Op 04760 [74 AD3d 769] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Mario A. Pesa et al., Respondents, v Yoma DevelopmentGroup, Inc., et al., Appellants, et al., Defendants. |
—[*1] Stock & Carr, Mineola, N.Y. (Victor A. Carr of counsel), for respondents.
In an action, inter alia, to recover damages for breach of a contract for the sale of realproperty, the defendants Yoma Development Group, Inc., and Southpoint, Inc., appeal, aslimited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes,J.), entered October 29, 2008, as, upon a decision of the same court entered July 18, 2008,granted that branch of the plaintiffs' cross motion which was for summary judgment on the issueof liability on the causes of action alleging breach of contract insofar as asserted against thedefendant Yoma Development Group, Inc., and, in effect, denied that branch of their crossmotion which was for summary judgment dismissing the causes of action alleging breach ofcontract insofar as asserted against the defendant Yoma Development Group, Inc.
Ordered that the appeal by the defendant Southpoint, Inc., from so much of the order asgranted that branch of the plaintiffs' cross motion which was for summary judgment on the issueof liability on the causes of action alleging breach of contract insofar as asserted against thedefendant Yoma Development Group, Inc., is dismissed, as that defendant is not aggrieved bythe portion of the order appealed from (see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondents.
In March 2003 the defendant Yoma Development Group, Inc. (hereinafter Yoma), agreed, inthree contracts, to sell three parcels of land to one or more of the plaintiffs. Each contractprovided, in relevant part, that if the purchaser did not receive a written mortgage commitmentfrom a lender within 60 days from the date of the contract, the purchaser would be permitted tocancel the contract by giving written notice to Yoma. It is not disputed that the contracts gavethe same right of cancellation to the sellers. Moreover, each contract clearly provided that itcould be canceled only by written notice.[*2]
In July 2006, without any of the transactions havingclosed, and without any party having elected to cancel the contracts, Yoma transferred theproperties to the defendant Southpoint, Inc. (hereinafter Southpoint), which itself later sold them.Eleven months after Yoma transferred the properties to Southpoint, an attorney for Yoma sentletters to the plaintiffs, purporting to cancel each of the contracts due to the plaintiffs' failure toobtain written mortgage commitments. The plaintiffs commenced this action, inter alia, torecover damages for breach of contract against Yoma and Southpoint. Eventually, the plaintiffs,and Yoma and Southpoint, sought summary judgment with respect to various issues. As relevantto this appeal, the Supreme Court awarded summary judgment to Southpoint dismissing thecomplaint insofar as asserted against it, granted that branch of the plaintiffs' cross motion whichwas for summary judgment against Yoma on the issue of liability on the causes of actionalleging breach of contract, and denied that branch of the cross motion of Yoma and Southpointwhich was for summary judgment dismissing the complaint insofar as asserted against Yoma.
A purchaser seeking specific performance of a contract for the sale of real property mustshow that it was ready, willing, and able to close "on the original law day or, if time is not of theessence, on a subsequent date fixed by the parties or within a reasonable time thereafter"(Ferrone v Tupper, 304 AD2d 524, 525 [2003]; see Huntington Min. Holdings vCottontail Plaza, 60 NY2d 997, 998 [1983]; Zeitoune v Cohen, 66 AD3d 889, 891 [2009]). By contrast, apurchaser seeking damages for the seller's anticipatory breach of a contract for the sale of realproperty is not required to establish, as an element of the claim, that it was ready, willing, andable to close (see Karo v Paine, 55AD3d 679, 680 [2008]; Somma vRichardt, 52 AD3d 813, 814 [2008]).
Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of lawon the issue of liability on the causes of action alleging breach of contract insofar as assertedagainst Yoma by establishing that Yoma committed an anticipatory breach of the contracts bytransferring the properties to a third party while the contracts were still in effect, and almost oneyear before Yoma sought to cancel them. As the plaintiffs were seeking damages for theanticipatory breach and were not seeking specific performance, they were not required toestablish that they were ready, willing, and able to perform (see Peek v Scialdone, 56 AD3d 743, 744 [2008]). In opposition,Yoma failed to raise a triable issue of fact (id.; see Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). For the same reason, Yoma and Southpoint failed toestablish, prima facie, that they were entitled to judgment as a matter of law dismissing thebreach of contract causes of action insofar as asserted against Yoma. Mastro, J.P., Fisher, Belenand Austin, JJ., concur.