Meisels v. 1295 Union Equities Corp.

306 A.D.2d 144, 761 N.Y.S.2d 48, 2003 N.Y. App. Div. LEXIS 6980

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 2003
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, Bronx County (Jerry Crispino, J.), entered November 15, 2001, which, inter alia, granted plaintiff summary judgment upon his first cause of action for, inter alia, specific performance of a contract for the sale of certain real property, denied defendants-appellants’ cross motion for summary judgment on their counterclaim to recover for damage to the property and dismissed said counterclaim, unanimously affirmed, without costs.

Summary judgment was properly granted to plaintiff purchaser upon his first cause of action seeking specific performance of the parties’ contract for the sale of certain real estate. Although appellant sellers maintain that they were entitled to cancel the subject contract pursuant to a contractual provision permitting cancellation in the event that they were unable to convey title free of objectionable liens and encumbrances, the record establishes that they were simply unwilling to bear the cost of conveying title in accordance with requirements of the contract. Volitional unwillingness, as distinguished from good faith inability, to meet contractual obligations furnishes neither a ground for cancellation of the contract nor a defense against its specific performance (see Naso v Haque, 289 AD2d 309 [2001]; Barnett v Star Mech. Corp., 171 AD2d 142 [1991]).

We have reviewed appellants’ remaining arguments and find them to be without merit. Concur — Nardelli, J.P., Tom, Andrias, Sullivan and Friedman, JJ.