Latipac Corp. v. BHM Realty LLC

Appellate Division of the Supreme Court of New York

Latipac Corp. v. BHM Realty LLC

2017 NY Slip Op 1793, 148 A.D.3d 466, 50 N.Y.S.3d 319

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 9, 2017

Docket3361 101213/09

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 1793 (Latipac Corp. v. BHM Realty LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Latipac Corp. v. BHM Realty LLC, 2017 NY Slip Op 1793, 148 A.D.3d 466, 50 N.Y.S.3d 319 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, New York County (Joan A. Madden, J.), entered April 27, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff’s cross motion for summary judgment, unanimously affirmed, without costs.

Plaintiff purchaser failed to establish, as a matter of law, that it was entitled to a return of its deposit on a real estate contract (see Donerail Corp. N.V. v 405 Park LLC, 100 AD3d 131, 137 [1st Dept 2012]; see also Martocci v Schneider, 119 AD3d 746, 748 [2d Dept 2014]). Even if plaintiff had established that defendant seller was in breach of the contract, which it did not, it would still be obligated to tender performance so long as the seller had the ability to cure its default within a reasonable time (see e.g. Ilemar Corp. v Krochmal, 44 NY2d 702, 703 [1978]; see also Martocci, 119 AD3d at 748). Plaintiff failed to tender performance and did not afford the seller an opportunity to cure.

*467 There are also issues of fact surrounding plaintiff’s ability and willingness to proceed with the sale on the closing date (see Donerail, 100 AD3d at 138; see also Martocci, 119 AD3d at 748), most notably because it failed to present checks or other proof that it had funds to purchase the property (Benhamo v Marinelli, 82 AD3d 922, 923 [2d Dept 2011]).

We have considered plaintiff’s remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Mazzarelli, Moskowitz and Kahn, JJ.

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Order, Supreme Court, New York County (Joan A. Madden, J.), entered April 27, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff’s cross motion for summary judgment, unanimously affirmed, without costs.

Plaintiff purchaser failed to establish, as a matter of law, that it was entitled to a return of its deposit on a real estate contract (see Donerail Corp. N.V. v 405 Park LLC, 100 AD3d 131, 137 [1st Dept 2012]; see also Martocci v Schneider, 119 AD3d 746, 748 [2d Dept 2014]). Even if plaintiff had established that defendant seller was in breach of the contract, which it did not, it would still be obligated to tender performance so long as the seller had the ability to cure its default within a reasonable time (see e.g. Ilemar Corp. v Krochmal, 44 NY2d 702, 703 [1978]; see also Martocci, 119 AD3d at 748). Plaintiff failed to tender performance and did not afford the seller an opportunity to cure.

*467 There are also issues of fact surrounding plaintiff’s ability and willingness to proceed with the sale on the closing date (see Donerail, 100 AD3d at 138; see also Martocci, 119 AD3d at 748), most notably because it failed to present checks or other proof that it had funds to purchase the property (Benhamo v Marinelli, 82 AD3d 922, 923 [2d Dept 2011]).

We have considered plaintiff’s remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Mazzarelli, Moskowitz and Kahn, JJ.

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Bluebook (online)

2017 NY Slip Op 1793, 148 A.D.3d 466, 50 N.Y.S.3d 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/latipac-corp-v-bhm-realty-llc-nyappdiv-2017.

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