Opinion
January 19, 1976
In an action inter alia for specific performance of a contract, defendants appeal from an order of the Supreme Court, Westchester County, entered July 22, 1975, which denied their motion pursuant to CPLR 3211 (subd [a], par 7), to dismiss the complaint for failure to state a cause of action. Order reversed, on the law, without costs, and motion granted. No questions of fact were presented on this appeal. It appears on the face of the complaint that plaintiff never tendered the down payment required by the contract. Moreover, the complaint is deficient in that it fails to allege facts sufficient to excuse plaintiff's failure to tender (see Harding Park Owners v Young, 5 Misc.2d 10, affd 2 A.D.2d 884). Martuscello, Latham and Margett, JJ., concur; Rabin, Acting P.J., and Shapiro, J., dissent and vote to affirm, with the following memorandum: Liberally construed, the complaint is sufficient, particularly in light of CPLR 3015 (subd [a]).