Opinion
August 13, 1984
Appeal from the Supreme Court, Suffolk County (Rohl, J.).
Judgment modified by (1) deleting subparagraphs (a), (c), (d) and (e) of the decretal paragraph thereof, and (2) adding a subparagraph to the decretal paragraph thereof directing defendant to obtain the owner's duplicate certificate of title issued pursuant to section 396 Real Prop. of the Real Property Law and to deliver it to plaintiff at the closing of title. As so modified, judgment affirmed, with costs to the plaintiff, and matter remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages and for the entry of an appropriate amended judgment.
The trial court properly granted plaintiff specific performance of its option to purchase certain real property owned by defendant (see, e.g., Da Silva v Musso, 53 N.Y.2d 543; Murray v Harbor Suburban Bldg. Sav. Assn., 91 App. Div. 397, aff'd on opn. at App. Div. 184 N.Y. 596; Webster v Kings County Trust Co., 145 N.Y. 275; Delavan v Duncan, 49 N.Y. 485; Pfister v Heins, 136 App. Div. 457; Wolas v Russo, 138 Misc. 702).
Accordingly, the matter is remitted to the Supreme Court, Suffolk County, for a determination of the damages suffered by plaintiff occasioned by defendant's breach. Attorney's fees may be awarded as part of those damages only upon a finding that "[defendant] has contumaciously deprived [plaintiff] of [a] clear legal entitlement, forcing the latter into the expense of rescuing [itself] through legal action" ( Park South Assoc. v Essebag, 113 Misc.2d 1026, 1028; emphasis added; Vaughan v Atkinson; 369 U.S. 527; see, also, Matter of Boston Providence R.R. Corp., 501 F.2d 545).
In the amended judgment to be entered after the trial on the issue of damages, the court should make appropriate provision for payment of the balance of the purchase price and the delivery of satisfaction pieces for the outstanding mortgages on the property. If, for example, the balance of the purchase price less plaintiff's damages, if any, is sufficient to satisfy the then outstanding mortgages, then plaintiff may be directed to tender the required amount due at the closing in the form of separate checks in the amounts necessary to discharge the mortgages, with the remainder, if any, payable to defendant. If, on the other hand, the balance of the purchase price less plaintiff's damages is not sufficient to discharge the then outstanding mortgage liens, then plaintiff may be directed either to simply tender a check to defendant for the balance due, leaving it to defendant to first satisfy the mortgage liens and obtain satisfaction pieces therefor, or to tender a check or checks to one or more of the mortgagees, upon condition that defendant simultaneously tender a check or checks for the balance of the mortgage liens and deliver to plaintiff the satisfaction pieces. Titone, J.P., Gibbons, Brown and Niehoff, JJ., concur.