BULLARO v. [And Another Action] (2023)

Order, Supreme Court, Bronx County (Fidel E. Gomez, J.), entered November 10, 2022, which granted defendants Ledo, Inc. and Thomas P. Anselmo's motion for summary judgment dismissing plaintiff's claim, denominated a third cause of action, for specific performance of the contract of sale for real property, unanimously affirmed, without costs.

As a threshold matter, we decline defendants’ invitation to dismiss this appeal based on plaintiff's inadvertent failure to include, in the record on appeal, an affidavit submitted by defendants on the underlying motion (CPLR 5526).  We disregard plaintiff's omission, finding that it did not result in substantial prejudice to defendants (CPLR 2001).

Supreme Court properly dismissed plaintiff's claim for specific performance.  The allegations in plaintiff's complaint and the record evidence establish, as a matter of law, that upon defendant seller Ledo, Inc.’s alleged breach of the contract, plaintiff affirmatively and undisputedly elected to terminate the contract instead of ignoring the breach and continuing to perform (see Todd English Enters. LLC v. Hudson Home Group, LLC, 206 A.D.3d 585, 587, 171 N.Y.S.3d 474 [1st Dept. 2022];  Rebecca Broadway L.P. v. Hotton, 143 A.D.3d 71, 80–81, 37 N.Y.S.3d 72 [1st Dept. 2016];  see generally CPLR 3212).  Having elected termination, plaintiff waived and abandoned any claim for specific performance (Whalen v. Stuart, 194 N.Y. 495, 504–505, 87 N.E. 819 [1909];  see Abely v. Hayden, 155 A.D.2d 254, 254–256, 547 N.Y.S.2d 25 [1st Dept. 1989];  Greven v. Muir, 128 A.D.2d 753, 754, 513 N.Y.S.2d 464 [2d Dept. 1987];  see also Jericho Group, Ltd. v. Midtown Dev., L.P., 32 A.D.3d 294, 298, 820 N.Y.S.2d 241 [1st Dept. 2006];  cf.  Asensio v. Casa 74th Dev., LLC, 79 A.D.3d 588, 589, 913 N.Y.S.2d 96 [1st Dept. 2010]).  Supreme Court properly determined that defendants’ motion for summary judgment was not premature because plaintiff failed to show that facts outside his knowledge may exist that could affect analysis of his claim for specific performance (cf.  CPLR 3212[f]).