Contro v. White

13 Citing cases

  1. Dibartolo v. Battery Place Assoc

    84 A.D.3d 474 (N.Y. App. Div. 2011)   Cited 12 times
    Holding six-year limitations period applicable to breach of fiduciary duty where same plaintiffs sought both equitable relief and damages for single wrong, alleged mishandling of escrow account

    Thus, plaintiffs were required to show only that they were "ready, willing and able" to close within a reasonable time ( Gindi v Intertrade Internationale Ltd., 50 AD3d 575, 575). The record is devoid of evidence that plaintiffs tried to protect their rights or enforce the contract between the January 1993 dismissal of the prior action and July 1999, when DiBartolo discussed her demand for rescission with Lewis. As a matter of law ( see Hegeman v Bedford, 5 AD3d 632), this unexplained delay in tendering performance is unreasonable and, in the absence of a timely tender of performance or readiness and willingness to go forward with the closing, the claim for specific performance should have been dismissed ( see Contro v White, 176 AD2d 1052). Plaintiffs' unequivocal demand for rescission, which persisted until plaintiffs requested a closing in November 2000, negates a finding of willingness and ability to close on the original or adjourned closing dates or a reasonable time thereafter ( see Kabro PM, LLC v WGB Main St., LLC, 52 AD3d 659, lv denied 12 NY3d 701; Stadtmauer v Brel Assoc. IV, 270 AD2d 59).

  2. O'Connell v. Soszynski

    46 A.D.3d 644 (N.Y. App. Div. 2007)   Cited 6 times

    We affirm. "[A] purchaser who seeks specific performance of a real estate contract must demonstrate that he or she was ready, willing, and able to perform the contract" ( Moutafis v Osborne, 7 AD3d 686, 687; see Realty Equities, Inc. v Walbaum, Inc., 18 AD3d 531, 531-532; Internet Homes, Inc. v Vitulli, 8 AD3d 438, 439; Johnson v Phelan, 281 AD2d 394). Under the facts of this case, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the plaintiff failed to secure a mortgage commitment in accordance with the terms of the contract ( see Budd v Budd, 280 AD2d 508; Contro v White, 176 AD2d 1052, 1053; 3M Holding Corp. v Wagner, 166 AD2d 580, 581-582; Ting v Dean, 156 AD2d 358, 359-360). In opposition, the plaintiff failed to demonstrate that he timely secured a mortgage commitment so as to raise a triable issue of fact as to his readiness and ability to perform ( see Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997, 998; Madison Equities, LLC v MZ Mgt. Corp., 17 AD3d 639, 640; Tsabari v Haye, 13 AD3d 360). Accordingly, the court properly dismissed the plaintiffs complaint, inter alia, for specific performance of the real estate contract.

  3. Djukanovic v. D'Amico

    40 A.D.3d 576 (N.Y. App. Div. 2007)   Cited 8 times

    "Here, even assuming that the defendants improperly cancelled the contract, the plaintiff still bore the burden to show that [he] had the financial capacity to purchase the property" ( Internet Homes, Inc. v Vitulli, 8 AD3d 438, 439; see Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997; Aliperti v Laurel Links, Ltd., 27 AD3d 675; Madison Equities, LLC v MZ Mgt. Corp., supra; Petrelli Assoc., v Germano, 268 AD2d 513; 3M Holding Corp. v Wagner, 166 AD2d 580). At trial, the plaintiff did not produce a mortgage application or commitment, or any other proof confirming that he had obtained the necessary financing. Thus, the Supreme Court properly dismissed the complaint on the ground that the plaintiff failed to meet his prima facie burden ( see Contro v White, 176 AD2d 1052; 3M Holding Corp. v Wagner, supra). In light of our determination, the remaining contentions have been rendered academic.

  4. Tsabari v. Haye

    13 A.D.3d 360 (N.Y. App. Div. 2004)   Cited 14 times

    A purchaser who seeks specific performance of a real estate contract must demonstrate that he or she was ready, willing, and able to perform the contract ( see Internet Homes, Inc. v. Vitulli, 8 AD3d 438; Moutafis v. Osborne, 7 AD3d 686; City Ownership v. Giambrone, 5 AD3d 529; Ferrone v. Tupper, 304 AD2d 524). Here, the plaintiff failed to adequately substantiate his assertion that he had the financial capacity to purchase the property on the scheduled closing date ( see Internet Homes, Inc. v. Vitulli, supra; Ferrone v. Tupper, supra; Madison Invs. v. Cohoes Assoc., 176 AD2d 1021; Contro v. White, 176 AD2d 1052). Moreover, the plaintiff did not demonstrate that he tendered his performance, or that tender was excused under the circumstances of this case ( see City Ownership v. Giambrone, supra; 28 Props. v. Akleh Realty Corp., 309 AD2d 632; see also Madison Invs. v. Cohoes Assoc., supra).

  5. EMC Mortgage Corp. v. Gross

    289 A.D.2d 438 (N.Y. App. Div. 2001)   Cited 1 times

    Upon the plaintiff making out a prima facie case for summary judgment, the defendants failed to establish or even raise a triable issue as to whether the plaintiff breached the modification commitment letter when it commenced a foreclosure action in 1996. Accordingly, there is no bar to specific performance of the modification commitment letter (see, Kraitenberger v. Aloow Realty Corp., 172 A.D.2d 647; cf., Madison Inves. v. Cohoes Assocs., 176 A.D.2d 1021; Contro v. White, 176 A.D.2d 1052). The defendants' remaining contentions are without merit.

  6. D'Agostino v. Harding

    217 A.D.2d 835 (N.Y. App. Div. 1995)   Cited 18 times

    The reinstatement of defendants' counterclaim requires a reversal of Supreme Court's award of summary judgment to plaintiff on his specific performance cause of action. We would also note that plaintiff was not entitled to summary judgment since he submitted no proof showing that he had the funds necessary to purchase the property ( see, Contro v. White, 176 A.D.2d 1052, 1053). Mikoll, J.P., Crew III, Yesawich Jr. and Peters, JJ., concur.

  7. Provost v. off Campus Apartments Company

    211 A.D.2d 850 (N.Y. App. Div. 1995)   Cited 16 times

    Defendants' contention that Supreme Court erred in granting summary judgment in favor of plaintiffs because plaintiffs did not demonstrate that they were ready, willing and able to perform their contract obligations is meritorious. Before specific performance of a contract may be granted, a plaintiff "must demonstrate that he/she was ready, willing and able to perform on the original law day or, if the time is not of the essence, on a subsequent date fixed by the parties" or within a reasonable time thereafter (Morey v. Sings, 174 A.D.2d 870, 873; see, Contro v White, 176 A.D.2d 1052, 1053). The record reveals that plaintiffs submitted no documentation or other proof to substantiate their assertion that they had the funds necessary to purchase the property and, thus, are unable to prove they were ready, willing and able to close the sale as a matter of law (see, Huntington Min. Holdings v. Cottontail Plaza, 60 N.Y.2d 997, 998; Contro v White, supra; Madison Invs. v. Cohoes Assocs., 176 A.D.2d 1021, 1022, lv dismissed 79 N.Y.2d 1040). Supreme Court therefore improperly granted plaintiffs' cross motion for summary judgment (compare, Cohn v. Mezzacappa Bros., 155 A.D.2d 506, lv denied 75 N.Y.2d 707).

  8. Ferracane v. Grandview Estates Constr. Corp.

    202 A.D.2d 780 (N.Y. App. Div. 1994)   Cited 4 times

    While we are not bound by Supreme Court's findings (see, Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 N.Y.2d 492, 499), we accord great weight to a Trial Judge's resolution of credibility issues (see, Matter of Lori H. v. Matthew I., 171 A.D.2d 991, 992). Applying this standard here, we conclude that there is no reason to disturb Supreme Court's findings as the totality of the evidence supports defendants' version of the events. Therefore, in view of plaintiff's breach of the contract, Supreme Court's dismissal of his causes of action was appropriate (see, Contro v. White, 176 A.D.2d 1052; 22 N Y Jur 2d, Contracts, ยง 370). We also find that the dismissal of defendants' counterclaim was appropriate as plaintiff's conduct cannot be deemed frivolous within the meaning of 22 NYCRR 130-1.1.

  9. Wells v. Meader

    192 A.D.2d 827 (N.Y. App. Div. 1993)   Cited 5 times

    Here, while plaintiff has indicated his willingness to waive certain contractual contingencies, it cannot be said that he is ready, willing and able inasmuch as his performance is also conditioned upon the obtaining of commitment for a FHA mortgage in the amount of $115,345 which he does not have and is not willing to waive. Clearly, this fact prevents issuance of an order compelling defendants to convey their interest to plaintiff (see, Contro v White, 176 A.D.2d 1052). Nonetheless, because it is apparent from a reading of the record that plaintiff's inability to obtain formal mortgage commitment was not due to any fault of his but rather to defendants' unwillingness to permit access to the property for the conducting of an inspection and appraisal by the lending institution which appraisal was a prerequisite to the issuance of commitment, we believe that ordering specific performance of defendants' obligations under the contract, notably their paragraph 15 obligation to permit access to the property to plaintiff or his agents for the purpose of performing any inspections required under the contract, is the appropriate remedy in this situation.

  10. Lifshitz v. Wilhelm

    2024 N.Y. Slip Op. 32565 (N.Y. Sup. Ct. 2024)

    Those requirements must be borne by the plaintiff's own evidence (see, Dairo v. Rockaway Boulevard Properties LLC, 44 A.D.3d 602, 843 N.Y.S.2d 642 [2d Dept., 2007]). As the court held in Centro v. White, 176 A.D.2d 1052, 57 4 N.Y.S.2d 982 [3rd Dept., 1991] "even accepting plaintiff's contention that his agreement to give defendant an indefinite extension of time to perfect title relieved him of his obligation to tender performance, he was nevertheless required to establish that he was ready, willing and able to purchase the property" (id