Julius Rose, Inc. v. Durham

21 A.D.3d 530, 799 N.Y.S.2d 920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 2005
• Status: Published

Opinion

In an action for specific performance of a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated November 23, 2004, which denied his motion for summary judgment dismissing the complaint and to vacate the notice of pendency.

Ordered that the order is affirmed, with costs.

The defendant failed to establish his entitlement to judgment as a matter of law. His letter stating that time was of the essence did not warn that failure to close would result in holding the plaintiff in default and terminating the contract (see Karamatzanis v Cohen, 181 AD2d 618 [1992]; Sohayegh v Oberlander, 155 AD2d 436, 438 [1989]; Zev v Merman, 134 AD2d 555, 557 [1987], affd 73 NY2d 781 [1988]). The letter merely stated that the plaintiff would be responsible for “any and all damages sustained” as a result of its failure to perform on the specified date.

The defendant’s remaining contentions are either without merit or unpreserved for appellate review. Prudenti, P.J., Goldstein, Crane and Mastro, JJ., concur.