Opinion
3361, 101213/09.
03-09-2017
LATIPAC CORP., Plaintiff–Appellant, v. BHM REALTY LLC, et al., Defendants–Respondents.
Goldberg Weprin Finkel Goldstein LLP, New York (Matthew E. Hearle of counsel), for Appellant. Greenblatt & Agulnick, P.C., Great Neck (Matthew W. Greenblatt of counsel), for Respondents.
Goldberg Weprin Finkel Goldstein LLP, New York (Matthew E. Hearle of counsel), for Appellant.
Greenblatt & Agulnick, P.C., Great Neck (Matthew W. Greenblatt of counsel), for Respondents.
SWEENY, J.P., MAZZARELLI, MOSKOWITZ, KAHN, JJ.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered April 27, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff's cross motion for summary judgment, unanimously affirmed, without costs.
Plaintiff purchaser failed to establish, as a matter of law, that it was entitled to a return of its deposit on a real estate contract (see Donerail Corp. N.V. v. 405 Park LLC, 100 A.D.3d 131, 137, 952 N.Y.S.2d 137 [1st Dept.2012] ; see also Martocci v. Schneider, 119 A.D.3d 746, 748, 990 N.Y.S.2d 240 [2d Dept.2014] ). Even if plaintiff had established that defendant seller was in breach of the contract, which it did not, it would still be obligated to tender performance so long as the seller had the ability to cure its default within a reasonable time (see e.g. Ilemar Corp. v. Krochmal, 44 N.Y.2d 702, 703, 405 N.Y.S.2d 444, 376 N.E.2d 917 [1978] ; see also Martocci, 119 A.D.3d at 748, 990 N.Y.S.2d 240 ). Plaintiff failed to tender performance and did not afford the seller an opportunity to cure.
There are also issues of fact surrounding plaintiff's ability and willingness to proceed with the sale on the closing date (see Donerail, 100 A.D.3d at 138, 952 N.Y.S.2d 137 ; see also Martocci, 119 A.D.3d at 748, 990 N.Y.S.2d 240 ), most notably because it failed to present checks or other proof that it had funds to purchase the property (Benhamo v. Marinelli, 82 A.D.3d 922, 923, 919 N.Y.S.2d 70 [2d Dept.2011] ).
We have considered plaintiff's remaining contentions and find them unavailing.