Opinion
2013-01-8
NEMON CORP., Plaintiff–Appellant, v. 45–51 AVENUE B, LLC, Defendant–Respondent.
Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J. Nash of counsel), for appellant. Kagen Law Firm, New York (Stuart Kagen of counsel), for respondent.
Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J. Nash of counsel), for appellant. Kagen Law Firm, New York (Stuart Kagen of counsel), for respondent.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 12, 2012, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint, directed that the notice of pendency filed by plaintiff in this action be cancelled, and directed that a $150,000 escrowed contract deposit be released to defendant, unanimously affirmed, with costs.
Plaintiff has failed to preserve its argument that the parties orally agreed to adjourn the November 11, 2011, time-is-of-the-ESSENCE CLOSING date for sale of the subject property ( see e.g. Credit Suisse First Boston v. Utrecht–America Fin. Co., 80 A.D.3d 485, 488, 915 N.Y.S.2d 531 [1st Dept. 2011] ). In any event, there is no written or other unequivocal evidence that the parties actually reached an agreement to adjourn the closing, in variance of the proscription in the parties' contract against oral modifications of its terms ( seeGeneral Obligations Law § 15–301[1]; #1 Funding Ctr., Inc. v. H & G Operating Corp., 48 A.D.3d 908, 910, 853 N.Y.S.2d 178 [3d Dept. 2008] ).
Moreover, contrary to plaintiff's contention, defendant sufficiently established that it was “ready and able to perform its own contractual undertakings on the closing date” ( Huntington Min. Holdings v. Cottontail Plaza, 60 N.Y.2d 997, 998, 471 N.Y.S.2d 267, 459 N.E.2d 492 [1983] ).