Opinion
CA 03-01966.
Decided April 30, 2004.
Appeal from a judgment of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered June 26, 2003. The judgment was entered upon an order dismissing the complaint and granted defendants costs and disbursements.
CARL G. SCALISE, HERKIMER, FOR PLAINTIFF-APPELLANT.
McLANE, SMITH AND LASCURETTES, L.L.P., UTICA (MARK W. McLANE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Before: PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking specific performance of a real estate contract for the purchase of land owned by defendants. Supreme Court properly granted defendants' cross motion for summary judgment dismissing the complaint. Defendants' letter of August 4, 2000 declared time of the essence and gave a law day of August 11, 2000. When the law day passed without plaintiff having tendered the remainder of the purchase price, defendants were entitled to terminate the contract ( see Zev v. Merman, 134 A.D.2d 555, 557, affd 73 N.Y.2d 781). Defendants met their burden of establishing that plaintiff was not ready, willing, and able to perform its obligations under the contract on the law day and plaintiff failed to raise an issue of fact ( see EC, L.L.C. v. Eaglecrest Manufactured Home Park [appeal No. 2], 275 A.D.2d 898, 899, lv denied 96 N.Y.2d 709; Zev, 134 A.D.2d at 557). Contrary to the contention of plaintiff, seven days was a reasonable time for its performance under the contract under the circumstances of this case ( see Zev, 73 N.Y.2d at 783). Plaintiff further contends that the deed tendered by defendants for the purpose of closing on the law day omitted three acres. That contention is without merit because, as plaintiff's former attorney conceded in an affidavit submitted at the request of plaintiff's current attorney, the description in the tendered deed "was of the whole property; there was no exception for 3 acres, 5 acres, or any exception for leased property."