Opinion
December 12, 1994
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
It is well established that in order for one selling real property to be in default for failure to provide insurable title, the purchaser "must first tender performance himself and demand good title" (Ilemar Corp. v Krochmal, 44 N.Y.2d 702, 703; see also, Cohen v Krantz, 12 N.Y.2d 242). Since the plaintiff failed to attend the scheduled closing, never tendered performance, never demanded good title from the defendants, and never informed the defendants of specific defects in the title prior to the closing, it was the plaintiff who was in default, not the defendants (Ilemar Corp. v Krochmal, supra). Therefore, the Supreme Court properly granted summary judgment to the defendants and awarded the defendant seller judgment in the amount of the down payment. Lawrence, J.P., Santucci, Altman and Goldstein, JJ., concur.