Opinion
2001-05465
Argued June 10, 2002
August 12, 2002
In an action, inter alia, to recover damages for breach of a real estate contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), entered May 17, 2001, which granted the defendants' separate motions for summary judgment dismissing the complaint and denied his cross motion for summary judgment.
Edward J. Martz, New York, N.Y., for appellant.
Twomey, Latham, Shea Kelley, LLP, Riverhead, N.Y. (Christopher Kelley of counsel), for respondents George Watson, Therese Watson, Jerome J. Meade, and Thomas E. Meade.
Harvey A. Arnoff, Riverhead, N.Y., for respondents Mary Persan and Brian Persan.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
ORDERED that the order is affirmed, with costs.
It is well settled that in order for a seller of real property to be found in default for failure to provide insurable or marketable title, the purchaser "must first tender performance * * * and demand good title" (Ilemar Corp. v. Krochmal, 44 N.Y.2d 702, 703; see Cohen v. Kranz, 12 N.Y.2d 242; Connolly v. Hampton Landscopes, 210 A.D.2d 285). Since the plaintiff failed to attend the scheduled closing, did not tender performance, did not demand good title from the defendants, and did not inform the defendants of the specific defects in the title prior to the closing, he was in default, not the defendants (see Ilemar Corp. v. Krochmal, supra; Connolly v. Hampton Landscopes, supra). Therefore, the Supreme Court properly granted the defendants' separate motions for summary judgment dismissing the complaint, and denied the plaintiff's cross motion for summary judgment (see Washington Ave. Assocs. v. Euclid Equip., 229 A.D.2d 486; Lake Hills Swim Club v. Samson Dev. Corp., 213 A.D.2d 701).
SANTUCCI, J.P., S. MILLER, GOLDSTEIN and TOWNES, JJ., concur.