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Moray v. DBAG, Inc.

Appellate Division of the Supreme Court of New York, Second Department
May 12, 2003
305 A.D.2d 472 (N.Y. App. Div. 2003)

Opinion

2002-09159, 2003-00175

Argued April 4, 2003.

May 12, 2003.

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Nastasi, J.), entered September 10, 2002, which, upon granting its motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, granted the plaintiff leave to replead, and (2) an order of the same court, entered December 10, 2002, which denied its motion, denominated as one for leave to renew, but which was, in effect, for leave to reargue, and to vacate a notice of pendency.

Kevin A. Stevens, Suffern, N.Y., for appellant.

Lubell Koven, New York, N.Y. (Lisa Solomon of counsel), for respondent.

Before: FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, SANDRA L. TOWNES, REINALDO E. RIVERA, JJ.


DECISION ORDER

ORDERED that the appeal from so much of the order entered December 10, 2002, as denied that branch of the motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order entered September 10, 2002, is affirmed, without costs or disbursements; and it is further,

ORDERED that the order entered December 10, 2002, is reversed insofar as reviewed, without costs or disbursements, and that branch of the defendant's motion which was, in effect, to vacate the notice of pendency is granted.

Contrary to the defendant's contention, the Supreme Court properly granted the plaintiff leave to replead pursuant to CPLR 3211(e). In opposition to the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), the plaintiff submitted evidence of conduct on the part of one of the defendant's principals following the stated closing date that reflected an intent to waive the defendant's right to cancel the contract for failure to obtain an area variance by that date (see Ehrenpreis v. Klein, 260 A.D.2d 532; Dellicarri v. Hirschfeld, 210 A.D.2d 584; Kaufman v. Haverstraw Rd. Lands, 158 A.D.2d 675; Gresser v. Princi, 128 A.D.2d 752). Under those circumstances, it was improper for the defendant to suddenly attempt to cancel the contract without first notifying the plaintiff that time was of the essence (see Tucek v. Hoffman, 161 A.D.2d 588; Dwyer v. Villanova, 129 A.D.2d 763, 765; Levine v. Sarbello, 112 A.D.2d 197, 200). The defendant would have been required to set a new date for closing and make time of the essence by giving "clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time in which to act" (Savitsky v. Sukenik, 240 A.D.2d 557, 558; see Mazzaferro v. Kings Park Butcher Shop, 121 A.D.2d 434, 435-436), and by informing the plaintiff that if he does not perform by that date, he will be considered in default (see Cave v. Kollar, 296 A.D.2d 370, 371-372; Hamburger v. Rieselman, 206 A.D.2d 822, 823; Charchan v. Wilkins, 231 A.D.2d 668).

Moreover, the defendant is not entitled to dismissal on the ground that the plaintiff failed to demonstrate that he was ready, willing, and able to close before the commencement of this action. Although purchasers who seek specific performance must ordinarily show that they are ready, willing, and able to perform (see Ehrenpreis v. Klein, supra; Scull v. Sicoli, 247 A.D.2d 852; Madison Invs. v. Cohoes Assocs., 176 A.D.2d 1021), such proof is not required where "the necessity for such a tender was obviated by acts of the other party amounting to an anticipatory breach of the contract" (Madison Invs. v. Cohoes Assocs., supra; see also Cohn v. Mezzacappa Bros., 155 A.D.2d 506).

That branch of the defendant's motion which was denominated as one for leave to renew and reargue was not based upon new facts which were in existence or unavailable to it at the time of the original motion. Therefore, that branch of the motion was, in effect, one for leave to reargue, the denial of which is not appealable (see Daughety v. St. Mary's Hosp. of Brooklyn, 301 A.D.2d 558; Muro v. Bay Ready Mix Supplies, 282 A.D.2d 584; Bossio v. Fiorillo, 222 A.D.2d 476, 477).

However, the Supreme Court should have granted that branch of the defendant's motion which was to vacate the notice of pendency based upon the plaintiff's failure to serve an amended complaint in accordance with the prior order.

SANTUCCI, J.P., LUCIANO, TOWNES and RIVERA, JJ., concur.


Summaries of

Moray v. DBAG, Inc.

Appellate Division of the Supreme Court of New York, Second Department
May 12, 2003
305 A.D.2d 472 (N.Y. App. Div. 2003)
Case details for

Moray v. DBAG, Inc.

Case Details

Full title:JOSEPH N. MORAY, respondent, v. DBAG, INC., appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 12, 2003

Citations

305 A.D.2d 472 (N.Y. App. Div. 2003)
760 N.Y.S.2d 193

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