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Felipe v. 2820 West 36th Street Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jul 18, 2005
20 A.D.3d 503 (N.Y. App. Div. 2005)

Opinion

2005-00587.

July 18, 2005.

In an action for specific performance of a contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (M. Garson, J.), dated December 15, 2004, which granted the defendant's motion for summary judgment dismissing the complaint and directed the Kings County Clerk to vacate the notice of pendency filed against the subject premises.

Caraballo Mandell, PLLC, New York, N.Y. (Dolly Caraballo of counsel), for appellants.

Alexander T. Singer, Brooklyn, N.Y., for respondent.

Before: Adams, J.P., Ritter, Goldstein and Fisher, JJ., concur.


Ordered that the order is affirmed, with costs.

The plaintiffs conceded that at the time they executed the contract of sale, the contract was not yet executed by the defendant. Moreover, it is undisputed that the defendant did not subsequently mail a fully-executed copy of the contract to the plaintiffs' attorney, as expressly required under paragraph 17 of the rider to the contract. Because the delivery requirement was a condition precedent to the formation of any binding agreement, it could not be waived by the defendant ( see Brois v. DeLuca, 154 AD2d 417; see also Manhattan Theatre Club v. Bohemian Benevolent Literary Assn. of City of N.Y., 64 NY2d 1069, 1070-1071; Schwartz v. Greenberg, 304 NY 250). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint and to direct the Kings County Clerk to vacate the notice of pendency ( see Raanan v. Tom's Triangle, 303 AD2d 668, 669).

The parties' remaining contentions are without merit.


Summaries of

Felipe v. 2820 West 36th Street Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jul 18, 2005
20 A.D.3d 503 (N.Y. App. Div. 2005)
Case details for

Felipe v. 2820 West 36th Street Realty Corp.

Case Details

Full title:EUSTORGIO FELIPE et al., Appellants, v. 2820 WEST 36TH STREET REALTY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 18, 2005

Citations

20 A.D.3d 503 (N.Y. App. Div. 2005)
798 N.Y.S.2d 738

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