Opinion
4674/05.
Decided July 18, 2005.
Upon the foregoing papers in this consolidated action, Oleg Krasnytsky (Krasnytsky), plaintiff in Action No. 3 (Krasnytsky v. Ontman, Index No. 6659/05) cross-moves for an order, pursuant to CPLR 3212, granting him summary judgment and directing specific performance of a contract of sale of real property entered into with defendants Mikhail Ontman and Dora Fridman (Fridman).
The contract, dated September 29, 2004, involved the sale of the premises located at 380 Kings Highway in Brooklyn by Mikhail Ontman and Fridman to Krasnytsky for $700,000.00. In conjunction with the execution of the contract, Krasnytsky deposited $35,000.00 as a down payment. The contract of sale provided that the parties were to close on November 15, 2004. Upon the failure of the parties to close on said date, counsel for Mikhail Ontman sent Krasnytsky's attorney a letter, dated November 17, 2004, wherein he stated, inter alia, that time was of the essence and that in the event Krasnytsky failed to close on December 17, 2004, he would be considered in default of the contract of sale and his deposit would be retained as liquidated damages.
According to the affidavit of Krasnytsky, Mikhail Ontman and Fridman "failed to tender the premises vacant, broom clean and free from tenants" as stated in the rider to the contract and, therefore, they "were not then ready, willing and able to close title." Krasnytsky's counsel thereafter sent his own time of the essence letter, dated January 12, 2005, whereby a closing date was scheduled for February 1, 2005 "at which time [Krasnytsky] expect[s] the entire premises to be vacant and broom clean" and that, should Mikhail Ontman and Fridman fail to close on said date, Krasnytsky would commence an action for specific performance. Counsel for Mikhail Ontman responded by letter dated January 19, 2005 stating that the contract was terminated when Krasnytsky failed to close on December 17, 2004. The closing did not occur on February 1, 2005; instead, on said date, Mikhail Ontman's one-half interest in the property was transferred to defendants Stanislav Kucher and Vladimir Ontman. This transfer was recorded on April 1, 2005, following the filing of the notice of pendency in this matter.
"An action for specific performance, such as this, is governed by equitable principles" ( Suffolk Bus. Ctr. v. Applied Digital Data Sys., 206 AD2d 515, 517 citing Gotthelf v. Stranahan, 138 NY 345, 351-352). Where, as here, a contract of sale does not contain a specific declaration that time is of the essence, the law permits the parties a reasonable time in which to tender performance, regardless of whether the contract designates a specific date on which such performance is to be tendered ( see Grace v. Nappa, 46 NY2d 560; Savitsky v. Sukenik, 240 AD2d 557; Sohayegh v. Oberlander, 155 AD2d 436). Where time is not made of the essence in the original contract, one party may subsequently make time of the essence by providing clear, distinct and unequivocal notice to that effect giving the other reasonable time to act. The notice should specify a time on which to close and warn that the failure to close on that date will result in a default ( see Zev v. Merman, 134 AD2d 555, 557 affd 73 NY2d 781).
There is no dispute that plaintiff did not appear for the closing on December 17, 2004. Generally, when the law day passes without the purchaser tendering the purchase price, the seller is entitled to terminate the contract ( see Oregon Mountain v. Soules, 6 AD3d 1193). Mikhail Ontman contends that Krasnytsky's failure to close was the result of his inability to tender the full purchase price and that Krasnytsky's failure to appear at the time of the essence closing on December 17, 2004 effectively terminated the contract and rendered meaningless any further attempt by Krasnytsky to schedule his own time of the essence closing. On the other hand, Krasnytsky argues that his failure to appear at the first time of the essence closing on December 17, 2004 is excused since Mikhail Ontman breached his obligation under the contract to vacate the premises before the closing. In this regard, a plaintiff seeking to maintain an action for specific performance or for damages for nonperformance of a contract need not demonstrate that a tender of his or her own performance was made where the necessity for such a tender was obviated by acts of the other party amounting to an anticipatory breach of the contract ( see Madison Investments v. Cohoes Assoc., 176 AD2d 1021). In support of this point, Krasnytsky refers to Mikhail Ontman's own affidavit, submitted in opposition to the cross motion, in which he states that he "arranged for a moving company to move [him] on December 17 in the event [Krasnytsky and he] closed" (emphasis added).
The subject provision alleged to have been breached by Mikhail Ontman states that "[s]eller shall deliver the Premises at Closing vacant and broom clean [and] free from tenants." When interpreting a contract, the court "should arrive at a construction which will give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized" ( Matter of John E. Andrus Mem. Home v. DeBuono, 260 AD2d 635, 636; see Joseph v. Creek Pines, 217 AD2d 534, 535). The subject provision clearly contemplates that at the time of closing the premises must be vacant. This requirement may not be construed to allow Mikhail Ontman to vacate only "in the event" that the sale closed. The intent of the parties to have the property vacant prior to closing is also apparent from the absence of a provision, included in some real estate sales contracts, which allows the seller a certain number of days following the closing to vacate the premises.
Accordingly, this court finds that Mikhail Ontman may not hold Krasnytsky to the original December 17, 2004 time of the essence closing date since Mikhail Ontman was in breach of the provision which required that he vacate the premises prior to any scheduled closing.
Before specific performance of a contract for the sale of real property may be granted, a plaintiff must demonstrate that he or she was ready, willing, and able to perform on the original law day or, if time is not of the essence, on a subsequent date fixed by the parties or within a reasonable time thereafter ( see Nuzzi Family Ltd. Liab. Co. v. Nature Conservancy, 304 AD2d 631, 632; Ferrone v. Tupper, 304 AD2d 524, 525; Ober v. Bey, 266 AD2d 441; Goller Place Corp. v. Cacase, 251 AD2d 287, 288). Krasnytsky's submission of affidavits and bank accounts from individuals who aver that they were prepared to provide funds to Krasnytsky to finance the purchase on February 1, 2005 establishes that Krasnytsky was ready, willing and able to purchase the property on said date, which this court finds is "within a reasonable time" after the first time of the essence closing date of December 17, 2004.
Accordingly, Krasnytsky's cross motion for summary judgment on his specific performance claim is granted. The owners of the property are directed to close title within thirty days after service upon them of a copy of this order with notice of entry.
The foregoing constitutes the decision, order and judgment of the court.