McGlone v. McGlone

Appellate Division of the Supreme Court of New York

McGlone v. McGlone

17 A.D.3d 549, 792 N.Y.S.2d 877, 2005 N.Y. App. Div. LEXIS 4117

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

DecidedApril 18, 2005

StatusPublished

Cited by2 cases

This text of 17 A.D.3d 549 (McGlone v. McGlone) 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

McGlone v. McGlone, 17 A.D.3d 549, 792 N.Y.S.2d 877, 2005 N.Y. App. Div. LEXIS 4117 (N.Y. Ct. App. 2005).

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Opinion

In an action for specific performance of a contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Burton, J.), dated April 8, 2004, which denied their motion for summary judgment.

[550]*550Ordered that the order is affirmed, without costs or disbursements.

The determination of whether to grant the equitable remedy of specific performance lies within the discretion of the court (see Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186 [1986]), and the right to such relief is not automatic (see Pecorella v Greater Buffalo Press, 107 AD2d 1064 [1985]). While we disagree with the Supreme Court’s finding that the defendant raised issues of fact in opposition to the motion for summary judgment concerning whether the defendant was entitled to cancel the contract based on the plaintiffs’ failure to timely tender the down payment and delay in seeking to schedule the closing, we nevertheless affirm the denial of the plaintiffs’ motion for summary judgment on the ground that, after the plaintiffs established a prima facie case for summary judgment, the defendant raised triable issues of fact concerning the plaintiffs’ entitlement to equitable relief (see Van Wagner Adv. Corp. v S & M Enters., supra; Currier v First Transcapital Corp., 190 AD2d 507 [19933; Castaldi v Multer, 117 AD2d 699 [1986]). Schmidt, J.P., Santucci, Luciano and Mastro, JJ., concur.

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In an action for specific performance of a contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Burton, J.), dated April 8, 2004, which denied their motion for summary judgment.

[550]*550Ordered that the order is affirmed, without costs or disbursements.

The determination of whether to grant the equitable remedy of specific performance lies within the discretion of the court (see Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186 [1986]), and the right to such relief is not automatic (see Pecorella v Greater Buffalo Press, 107 AD2d 1064 [1985]). While we disagree with the Supreme Court’s finding that the defendant raised issues of fact in opposition to the motion for summary judgment concerning whether the defendant was entitled to cancel the contract based on the plaintiffs’ failure to timely tender the down payment and delay in seeking to schedule the closing, we nevertheless affirm the denial of the plaintiffs’ motion for summary judgment on the ground that, after the plaintiffs established a prima facie case for summary judgment, the defendant raised triable issues of fact concerning the plaintiffs’ entitlement to equitable relief (see Van Wagner Adv. Corp. v S & M Enters., supra; Currier v First Transcapital Corp., 190 AD2d 507 [19933; Castaldi v Multer, 117 AD2d 699 [1986]). Schmidt, J.P., Santucci, Luciano and Mastro, JJ., concur.

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Bluebook (online)

17 A.D.3d 549, 792 N.Y.S.2d 877, 2005 N.Y. App. Div. LEXIS 4117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcglone-v-mcglone-nyappdiv-2005.

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