HANDS ON MGT INC v. LLC (2003)

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about January 13, 2003, which, in an action seeking specific performance of a contract for the purchase of a building, inter alia, granted defendant-respondent's cross motion for summary judgment dismissing the complaint as against it, and order, same court and Justice, entered on or about January 13, 2003, which granted plaintiff's motion for a default judgment against defendant C.D.O. Realty Corp., but held that plaintiff was not entitled to specific performance, unanimously affirmed, with one bill of costs.

 The motion court properly determined that plaintiff purchaser breached the subject contract for the sale of real property by not forwarding an additional $20,000 payment at the expiration of the due diligence period, in accordance with the agreement's terms.   Instead, plaintiff sought to change those terms by proposing the addition of a purchase money mortgage provision-the equivalent of making a counter-offer (see Lamanna v. Wing Yuen Realty, 283 A.D.2d 165, 166, 724 N.Y.S.2d 54, lv. denied 96 N.Y.2d 719, 733 N.Y.S.2d 371, 759 N.E.2d 370).   Plaintiff's actions demonstrated that it was not ready, willing and able to perform its contractual obligations, and thus was not entitled to specific performance (see Huntington Mining Holdings, Inc. v. Cottontail Plaza, Inc., 60 N.Y.2d 997, 998, 471 N.Y.S.2d 267, 459 N.E.2d 492).