Rovello v. Orofino Realty Co.

Appellate Division of the Supreme Court of New York

Rovello v. Orofino Realty Co.

51 A.D.2d 562, 378 N.Y.S.2d 740, 1976 N.Y. App. Div. LEXIS 10825

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

DecidedJanuary 19, 1976

StatusPublished

This text of 51 A.D.2d 562 (Rovello v. Orofino Realty Co.) 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

Rovello v. Orofino Realty Co., 51 A.D.2d 562, 378 N.Y.S.2d 740, 1976 N.Y. App. Div. LEXIS 10825 (N.Y. Ct. App. 1976).

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Opinion

In an action inter alia for specific performance of a contract, defendants appeal from an order of the Supreme Court, Westchester County, entered July 22, 1975, which denied their motion pursuant to CPLR 3211 (subd fa], par 7), to dismiss the complaint for failure to state a cause of action. Order reversed, on the law, without costs, and motion granted. No questions of fact were presented on this appeal. It appears on the face of the complaint that plaintiff never tendered the down payment required by the contract. Moreover, the complaint is deficient in that it fails to allege facts sufficient to excuse plaintiff’s failure to tender (see Harding Park Owners v Young, 5 Misc 2d 10, affd 2 AD2d 884). Martuscello, Latham and Margett, JJ., concur; Rabin, Acting P. J., and Shapiro, J., dissent and vote to affirm, with the following memorandum: Liberally construed, the complaint is sufficient, particularly in light of CPLR 3015 (subd [a]).

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In an action inter alia for specific performance of a contract, defendants appeal from an order of the Supreme Court, Westchester County, entered July 22, 1975, which denied their motion pursuant to CPLR 3211 (subd fa], par 7), to dismiss the complaint for failure to state a cause of action. Order reversed, on the law, without costs, and motion granted. No questions of fact were presented on this appeal. It appears on the face of the complaint that plaintiff never tendered the down payment required by the contract. Moreover, the complaint is deficient in that it fails to allege facts sufficient to excuse plaintiff’s failure to tender (see Harding Park Owners v Young, 5 Misc 2d 10, affd 2 AD2d 884). Martuscello, Latham and Margett, JJ., concur; Rabin, Acting P. J., and Shapiro, J., dissent and vote to affirm, with the following memorandum: Liberally construed, the complaint is sufficient, particularly in light of CPLR 3015 (subd [a]).

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Bluebook (online)

51 A.D.2d 562, 378 N.Y.S.2d 740, 1976 N.Y. App. Div. LEXIS 10825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rovello-v-orofino-realty-co-nyappdiv-1976.

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