Leishman v. S & B Realty of Orange County, Inc.

Appellate Division of the Supreme Court of New York

Leishman v. S & B Realty of Orange County, Inc.

218 A.D.2d 687, 630 N.Y.S.2d 377, 1995 N.Y. App. Div. LEXIS 8712

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

DecidedAugust 14, 1995

StatusPublished

This text of 218 A.D.2d 687 (Leishman v. S & B Realty of Orange County, Inc.) 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

Leishman v. S & B Realty of Orange County, Inc., 218 A.D.2d 687, 630 N.Y.S.2d 377, 1995 N.Y. App. Div. LEXIS 8712 (N.Y. Ct. App. 1995).

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Opinion

—In an action, inter alia, for specific performance of a contract for the sale of real property, the defendants appeal from a judgment of the Supreme Court, Orange County (Sherwood, J.), dated March 22, 1994, which, upon granting the plaintiff’s motion for summary judgment and denying the defendants’ cross motion for summary judgment, is in favor of the plaintiff and against them directing specific performance.

Ordered that the judgment is modified by deleting the words "in the form and in the manner hereto annexed and marked Exhibit 'B’ ” from the sixth decretal paragraph thereof; as so modified, the judgment is affirmed, with costs to the plaintiff.

Upon reviewing the record in its entirety, and giving due consideration to the relevant factors set forth in decisional law (see, Ben Zev v Merman, 73 NY2d 781; Knight v McClean, 171 AD2d 648), we discern no basis for disturbing the Supreme Court’s determination that the "time is of the essence” declaration by the defendant S & B Realty of Orange County, Inc. (hereinafter S & B Realty) failed to afford the plaintiff a reasonable time within which to close title to the real property in question (see, e.g., Klein v Opert, 201 AD2d 705; Knight v McClean, supra; Goldring v Sletco Realty, 129 Misc 2d 756). Therefore, the defendants’ refusal to close on a subsequent date constituted a breach of the contract and, under the circumstances presented, the plaintiff was entitled to specific performance.

However, the defendants correctly contend that the judgment may not compel individuals who are not parties to this action to finance a private mortgage for the plaintiff. Rather, [688]*688the plaintiff is entitled only to require that S & B Realty provide her with a mortgage in accordance with its obligations under the contract of sale. Thus, we have modified the judgment accordingly.

The defendants’ remaining contentions lack support in the record and are without merit. Sullivan, J. P., O’Brien, Thompson and Santucci, JJ., concur.

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—In an action, inter alia, for specific performance of a contract for the sale of real property, the defendants appeal from a judgment of the Supreme Court, Orange County (Sherwood, J.), dated March 22, 1994, which, upon granting the plaintiff’s motion for summary judgment and denying the defendants’ cross motion for summary judgment, is in favor of the plaintiff and against them directing specific performance.

Ordered that the judgment is modified by deleting the words "in the form and in the manner hereto annexed and marked Exhibit 'B’ ” from the sixth decretal paragraph thereof; as so modified, the judgment is affirmed, with costs to the plaintiff.

Upon reviewing the record in its entirety, and giving due consideration to the relevant factors set forth in decisional law (see, Ben Zev v Merman, 73 NY2d 781; Knight v McClean, 171 AD2d 648), we discern no basis for disturbing the Supreme Court’s determination that the "time is of the essence” declaration by the defendant S & B Realty of Orange County, Inc. (hereinafter S & B Realty) failed to afford the plaintiff a reasonable time within which to close title to the real property in question (see, e.g., Klein v Opert, 201 AD2d 705; Knight v McClean, supra; Goldring v Sletco Realty, 129 Misc 2d 756). Therefore, the defendants’ refusal to close on a subsequent date constituted a breach of the contract and, under the circumstances presented, the plaintiff was entitled to specific performance.

However, the defendants correctly contend that the judgment may not compel individuals who are not parties to this action to finance a private mortgage for the plaintiff. Rather, [688]*688the plaintiff is entitled only to require that S & B Realty provide her with a mortgage in accordance with its obligations under the contract of sale. Thus, we have modified the judgment accordingly.

The defendants’ remaining contentions lack support in the record and are without merit. Sullivan, J. P., O’Brien, Thompson and Santucci, JJ., concur.

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Bluebook (online)

218 A.D.2d 687, 630 N.Y.S.2d 377, 1995 N.Y. App. Div. LEXIS 8712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leishman-v-s-b-realty-of-orange-county-inc-nyappdiv-1995.

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