Nemon Corp. v. 45-51 Avenue B, LLC

102 A.D.3d 438, 956 N.Y.S.2d 879

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Eileen A. Rakower, J), entered June 12, 2012, which, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint, directed that the notice of pendency filed by plaintiff in this action be cancelled, and directed that a $150,000 escrowed contract deposit be released to defendant, unanimously affirmed, with costs.

Plaintiff has failed to preserve its argument that the parties orally agreed to adjourn the November 11, 2011, time-is-of-the-essence closing date for sale of the subject property (see e.g. Credit Suisse First Boston v Utrecht-America Fin. Co., 80 AD3d 485, 488 [1st Dept 2011]). In any event, there is no written or other unequivocal evidence that the parties actually reached an agreement to adjourn the closing, in variance of the proscription in the parties’ contract against oral modifications of its terms (see General Obligations Law § 15-301 [1]; #1 Funding Ctr, Inc. v H & G Operating Corp., 48 AD3d 908, 910 [3d Dept 2008]).

Moreover, contrary to plaintiffs contention, defendant sufficiently established that it was “ready and able to perform its own contractual undertakings on the closing date” (Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997, 998 [1983]). Concur—Tom, J.P., Andrias, Freedman, Román and Gische, JJ. [Prior Case History: 2012 NY Slip Op 31542(U).]