Opinion
4553
November 9, 2004.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 23, 2004, which, after a nonjury trial, dismissed plaintiff buyer's complaint seeking specific performance, canceled the parties' contract to transfer real estate, and declared that defendant seller is entitled to retain plaintiff's down payment, unanimously modified, on the law, to vacate the declaration that defendant is entitled to retain plaintiff's down payment, and substitute therefor a declaration that defendant must return the down payment, and otherwise affirmed, without costs.
Before: Tom, J.P., Andrias, Sullivan, Ellerin and Sweeny, JJ.
The trial court correctly determined that the rider on which plaintiff relies to show a breach by defendant was not part of the parties' contract. However, plaintiff should not have been charged with an anticipatory breach of the contract where defendant seller acknowledged that it could not deliver title on the closing date ( see Gargano v. Rubin, 200 AD2d 554). Under the circumstances, the contract should be deemed lapsed and the parties restored to their precontract positions. We have considered the parties' remaining contentions and find them unavailing.