28 Properties, Inc. v. Akleh Realty Corp.

22 A.D.3d 432, 803 N.Y.S.2d 62

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 2005
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Kibble F. Payne, J.), entered March 11, 2005, which, after a nonjury trial, dismissed plaintiffs claim for specific performance, unanimously affirmed, without costs.

The trial evidence comported with the court’s conclusion that plaintiff did not meet its burden to demonstrate that it was, within a reasonable time after the non-time of the essence closing date, ready, willing and able to tender performance of its obligations as purchaser under the parties’ real estate contract (see Goller Place Corp. v Cacase, 251 AD2d 287 [1998]). Plaintiff failed to demonstrate until some four years subsequent to the original closing date that it was financially able to close. That defendants may, in the interim, have anticipatorily breached the contract, did not excuse plaintiff from a timely tender of its performance, if the contract was to be specifically enforced (see Internet Homes, Inc. v Vitulli, 8 AD3d 438 [2004]). Concur— Andrias, J.P., Saxe, Friedman, Nardelli and Malone, JJ.