Opinion
July 29, 1991
Appeal from the Supreme Court, Queens County (LeVine, J.).
Ordered that the order and judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is granted, before a different Justice, with costs to abide the event.
Although the defendant's claim that he was denied a fair trial was not preserved for appellate review as a matter of law, we address it in the exercise of our interest of justice jurisdiction. The plaintiff and the defendant each took the stand. However, the court assumed the conduct of the trial, engaged in extensive colloquy with the attorneys, and permitted but three questions of the plaintiff and two of the defendant. Of the total of five questions asked, the court propounded three. Numerous other witnesses were present and prepared to testify, yet their testimony was precluded by the court. As a result, insufficient evidence was adduced on which to determine whether it was the plaintiff or the defendant who refused to consummate the transaction, or why (see, e.g., Wong v Weissman, 133 A.D.2d 821; Giribaldi Realty Constr. Co. v Santangelo, 164 App. Div. 513, affd 221 N.Y. 673), and, if it was the defendant who caused the breach, whether the plaintiff was nevertheless ready, willing, and able to perform his obligations under the contract (Jewell v Rowe, 119 A.D.2d 634; Stawski v Epstein, 67 A.D.2d 681). Under these circumstances a reasoned decision as to whether the plaintiff was entitled to specific performance could not be made. Therefore a new trial is granted. Sullivan, J.P., Eiber, Miller and Ritter, JJ., concur.