Prana Partners v. Brittbran Realty, Inc.

Appellate Division of the Supreme Court of New York

Prana Partners v. Brittbran Realty, Inc.

12 A.D.3d 198, 783 N.Y.S.2d 811, 2004 N.Y. App. Div. LEXIS 13170

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

DecidedNovember 9, 2004

StatusPublished

Cited by3 cases

This text of 12 A.D.3d 198 (Prana Partners v. Brittbran Realty, 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

Prana Partners v. Brittbran Realty, Inc., 12 A.D.3d 198, 783 N.Y.S.2d 811, 2004 N.Y. App. Div. LEXIS 13170 (N.Y. Ct. App. 2004).

Pincite

Opinion

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 23, 2004, which, after a nonjury trial, dismissed plaintiff buyer’s complaint seeking specific performance, canceled the parties’ contract to transfer real estate, and declared that defendant seller is entitled to retain plaintiffs down payment, unanimously modified, on the law, to vacate the declaration that defendant is entitled to retain plaintiffs down payment, and substitute therefor a declaration that defendant must return the down payment, and otherwise affirmed, without costs.

The trial court correctly determined that the rider on which plaintiff relies to show a breach by defendant was not part of the parties’ contract. However, plaintiff should not have been charged with an anticipatory breach of the contract where defendant seller acknowledged that it could not deliver title on the closing date (see Gargano v Rubin, 200 AD2d 554 [1994]). Under the circumstances, the contract should be deemed lapsed and the parties restored to their precontract positions. We have considered the parties’ remaining contentions and find them unavailing. Concur—Tom, J.P., Andrias, Sullivan, Ellerin and Sweeny, JJ.

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Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 23, 2004, which, after a nonjury trial, dismissed plaintiff buyer’s complaint seeking specific performance, canceled the parties’ contract to transfer real estate, and declared that defendant seller is entitled to retain plaintiffs down payment, unanimously modified, on the law, to vacate the declaration that defendant is entitled to retain plaintiffs down payment, and substitute therefor a declaration that defendant must return the down payment, and otherwise affirmed, without costs.

The trial court correctly determined that the rider on which plaintiff relies to show a breach by defendant was not part of the parties’ contract. However, plaintiff should not have been charged with an anticipatory breach of the contract where defendant seller acknowledged that it could not deliver title on the closing date (see Gargano v Rubin, 200 AD2d 554 [1994]). Under the circumstances, the contract should be deemed lapsed and the parties restored to their precontract positions. We have considered the parties’ remaining contentions and find them unavailing. Concur—Tom, J.P., Andrias, Sullivan, Ellerin and Sweeny, JJ.

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Bluebook (online)

12 A.D.3d 198, 783 N.Y.S.2d 811, 2004 N.Y. App. Div. LEXIS 13170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prana-partners-v-brittbran-realty-inc-nyappdiv-2004.

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