| Jannetti v Whelan |
| 2015 NY Slip Op 07010 [131 AD3d 1209] |
| September 30, 2015 |
| Appellate Division, Second Department |
[*1]
| David Jannetti, Appellant, v Mary M. Whelanet al., Respondents. |
Michael G. Walsh, Water Mill, N.Y. (Kelly A. Doyle of counsel), for appellant.
Patricia Weiss, Sag Harbor, N.Y., for respondents.
In an action, inter alia, for specific performance of a contract for the sale of realproperty, the plaintiff appeals from an order of the Supreme Court, Suffolk County(Gazzillo, J.), entered February 13, 2014, which granted the defendants' cross motion forsummary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On September 9, 2010, the plaintiff entered into a contract with the defendants topurchase certain real property from the defendants for the sum of $6,050,000. Theplaintiff made a down payment in the sum of $100,000, and entered into a purchasemoney mortgage with the defendants for a portion of the balance in the sum of$4,500,000, with the remaining balance of $1,450,000 to be paid at the closing. Thecontract provided that the closing was to take place on December 24, 2010, and thecontract rider stated that if the plaintiff failed to close on or before that date, "thiscontract shall become null and void and [the defendants] shall retain the deposit madehereunder," and that neither party would have "any further recourse against the other." Ina letter dated December 3, 2010, the defendants' counsel advised the plaintiff that thedefendants were "prepared to close on the date specified in the contract, subject to timelysubmission of financial and personal information, sufficient and necessary to warrant a$4,500,000 purchase money mortgage."
On December 8, 2010, the plaintiff commenced this action, inter alia, for specificperformance of the contract, alleging that the defendants' letter dated December 3, 2010,constituted an anticipatory repudiation of the contract. Thereafter, the defendantscross-moved for summary judgment dismissing the complaint, asserting, among otherthings, that there was no evidence that the plaintiff was ready, willing, and able to closeon December 24, 2010. In an order entered February 13, 2014, the Supreme Courtgranted the defendants' cross motion for summary judgment dismissing the complaint onthe ground that there was no evidence that time was made of the essence for thedefendants to close on December 24, 2010. The plaintiff appeals from the order. Weaffirm the order, albeit on a different ground.
As the defendants correctly concede, the Supreme Court improperly based itsdetermination granting their cross motion on the ground that the plaintiff failed to maketime of the essence to close on December 24, 2010, insofar as the contract rider expresslystated that the contract would be "null and void" if the closing did not occur on or beforeDecember 24, 2010 (see Petrelli Assoc. v Germano, 268 AD2d 513, 514[2000]).
[*2] Nevertheless, the defendantsmade a prima facie showing of entitlement to judgment as a matter of law bydemonstrating the absence of a triable issue of fact regarding whether the plaintiff wasready, willing, and able to close on December 24, 2010 (see Revital Realty Group, LLC vUlano Corp., 112 AD3d 902, 904 [2013]; Sutphin Mgt. Corp. v REP 755 Real Estate, LLC, 73 AD3d738, 741-742 [2010]; Zeitoune v Cohen, 66 AD3d 889, 892 [2009]; Knopff v Johnson, 29 AD3d741, 741-742 [2006]).
In opposition to the defendants' prima facie showing, the plaintiff failed to raise atriable issue of fact. To the extent the plaintiff argued that the defendants' cross motionfor summary judgment was premature, this contention is without merit. "A partycontending that a motion for summary judgment is premature is required to demonstratethat additional discovery might lead to relevant evidence or that the facts essential tooppose the motion are exclusively within the knowledge and control of the movant[s]"(Burlington Ins. Co. v CasurCorp., 123 AD3d 965, 965-966 [2014]; see CPLR 3212 [f]). "[T]hemere hope that further discovery will reveal the existence of a triable issue of fact isinsufficient to delay determination of the motion" (Chester v Alsol Enters., Ltd., 95 AD3d 922, 923 [2012]).Here, the plaintiff failed to indicate what evidence further discovery might uncover, or toexplain how information concerning his financial ability to close on December 24, 2010,was not already in his possession.
To the extent the plaintiff submitted bank statements as an exhibit to his "ReplyAffidavit" after the submission of the defendants' reply papers on the cross motion, thiswas, in effect, an improper surreply, and such documents could not be considered (see Graffeo v Paciello, 46AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]).
The parties' remaining contentions are either not properly before this Court orwithout merit.
Accordingly, the Supreme Court properly granted the defendants' cross motion forsummary judgment dismissing the complaint. Mastro, J.P., Cohen, Maltese and Barros,JJ., concur. [Prior Case History: 2014 NY Slip Op 30392(U).]