Opinion
February 21, 1966
In an action for specific performance of a contract for the sale of certain real property and for damages, defendant appeals from so much of an order of the Supreme Court, Westchester County, entered in Rockland County July 26, 1965 which, upon reargument, adhered to the court's original determination denying defendant's motion (1) for summary judgment as to the first cause of action (for specific performance), and (2) in the alternative to cancel the notice of pendency of the action theretofore filed by the plaintiff. (The order directs cancellation of the notice upon the furnishing by defendant of an undertaking of $35,000.) Order, insofar as appealed from, affirmed, with $10 costs and disbursements. Although upon the pleadings alone it would appear that summary judgment dismissing the cause of action for specific performance might be proper ( Saperstein v. Mechanics Farmers Sav. Bank, 228 N.Y. 257; Holden v. Efficient Craftsman Corp., 234 N.Y. 437, 440), amendments prior to trial may rectify deficiencies when the affidavits indicate triable issues ( Curry v. Mackenzie, 239 N.Y. 267; Chatham Sec. Corp. v. Williston Beane, 16 A.D.2d 764). Plaintiff should be afforded the opportunity to join the subsequent vendees as parties to the action, after which, if there be proof that they had notice of the prior contract and plaintiff's rights thereunder, the conveyances might be vacated and specific performance granted ( Spuches v. Royal View, 13 A.D.2d 815). These factual issues raised by the conflicting affidavits must await a determination following a speedy hearing ( Falk v. Goodman, 7 N.Y.2d 87, 91). Brennan, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.