28 PROPERTIES INC v. Biryani Corp., Defendant. (2003)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 24, 2003, which, insofar as appealed from, denied plaintiff's motion for summary judgment on its first cause of action for specific performance of a real estate contract, unanimously affirmed, without costs.

 Defendant sellers failed to schedule a closing, alleging that plaintiff lacked sufficient funds to acquire the subject premises despite plaintiff's letter notification that it was ready, willing and able to proceed with the contract of sale.   The IAS court found a factual question as to whether plaintiff gave timely notice of its decision to waive a mortgage contingency provision.   However, there is no indication in the record that defendants ever notified plaintiff to conduct an inspection, thereby starting the 45-day period in which plaintiff was required to either obtain financing or waive the contingency provision, and neither party seems to have declared time to be of the essence (cf.  Petrelli Assoc. v. Germano, 268 A.D.2d 513, 513-514, 702 N.Y.S.2d 360).   Plaintiff was clearly entitled to waive the mortgage contingency clause inserted solely for its benefit (W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639;  Xhelili v. Larstanna, 150 A.D.2d 560, 541 N.Y.S.2d 132).   However, in the absence of a tender of the purchase price at closing, “there is no law day by which plaintiff's performance can be measured” (3M Holding Corp. v. Wagner, 166 A.D.2d 580, 581, 560 N.Y.S.2d 865).   Thus, in the absence of plaintiff having formally tendered performance as of the time of the motion, the IAS court properly denied summary judgment on the ground that it is plaintiff's burden to demonstrate that it was ready, willing and able to perform pursuant to the contract of sale to obtain the relief of specific performance (Zev v. Merman, 134 A.D.2d 555, 521 N.Y.S.2d 455, affd. 73 N.Y.2d 781, 536 N.Y.S.2d 739, 533 N.E.2d 669;  Huntington Min. Holdings v. Cottontail Plaza, 96 A.D.2d 526, 526-527, 465 N.Y.S.2d 40, affd. 60 N.Y.2d 997, 471 N.Y.S.2d 267, 459 N.E.2d 492).