Spivak v. Farkas

217 A.D.2d 430, 629 N.Y.S.2d 45, 1995 N.Y. App. Div. LEXIS 7627

Opinion

Order, Supreme Court, New York County (Ira Gammerman, J.), entered May 23, 1994, which in an action to recover the down payment in a contract for the sale of real property and related expenses, granted plaintiff’s motion for summary judgment, unanimously affirmed, with costs.

Plaintiff buyer was entitled to cancel the contract without a showing of tender or ability to pay, because defendants’ title was incurably defective, constituting only seven-eighths interest in the subject property, and thus defendants were in automatic breach (see, Cohen v Kranz, 12 NY2d 242, 246, 247). Defendants’ misrepresentation in the contract that they possessed full title was a misrepresentation that also justified plaintiff’s cancellation of the contract (see, Junius Constr. Corp. v Cohen, 257 NY2d 393, 400). Concur—Sullivan, J. P., Ellerin, Wallach, Williams and Mazzarelli, JJ.