Opinion
March 29, 1971
In an action by a vendee under a contract to sell real property to recover its down payment and expenses for examination of title, in which defendant counterclaimed for damages, (1) plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated September 9, 1970, as denied its motion for summary judgment and (2) defendant appeals from so much of the order as denied her application for the same relief in her favor. Order modified, on the law, by inserting in the decretal paragraph thereof, immediately after the words "plaintiff's motion for summary judgment" the following: "is granted as prayed for in its complaint and defendant's counterclaims are dismissed". As so modified, order affirmed, with $10 costs and disbursements to plaintiff against defendant. The contract made its cancellation and the return of the plaintiff's down payment, together with title search expenses, a consequence of defendant's failure to have obtained a proper certificate of occupancy on December 19, 1969, the adjourned closing date. Whether defendant was able to cure the defect within a reasonable time after that date was, therefore, irrelevant, because the contract, by providing for its cancellation on the adjourned date, did not allow any further adjournments, however reasonable the period. Tenders by buyers are required in order to place sellers in default with respect to curable defects. Tenders are not required, nor is evidence of a willingness and ability to perform necessary, in cases of incurable defects ( Cohen v. Kranz, 12 N.Y.2d 242, 246). On December 19 defendant's failure to have obtained a proper certificate of occupancy was an incurable defect, for there was no longer any time allowed by the contract within which defendant could obtain the required certificate. Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.