MING MAN FONG v. HUAN HONG YU (2005)

Order and judgment (one paper), Supreme Court, New York County (Rosalyn Richter, J.), entered October 15, 2004, which, inter alia, granted plaintiff buyers' cross motion for summary judgment, and required defendant to specifically perform the subject contract for the sale of certain real property, unanimously affirmed, without costs.

The record establishes that defendant materially breached the contract of sale by, inter alia, willfully failing to appear for the time-of-the-essence closing.   Contrary to defendant's argument, the letter sent to him by plaintiffs' counsel in the immediate aftermath of the failed closing may not be fairly construed as a repudiation of the contract.   Indeed, the letter plainly advises defendant of plaintiffs' intention to pursue the remedies available to them under the contract, both legal and equitable.   As such, the letter was in no way inconsistent with plaintiffs' assertion of a claim for specific performance, and inasmuch as the criteria for that relief (see EMF Gen. Contr. Corp. v. Bisbee, 6 A.D.3d 45, 51, 774 N.Y.S.2d 39 [2004], lv. dismissed 3 N.Y.3d 656, 782 N.Y.S.2d 695, 816 N.E.2d 568 [2004], lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 25, 818 N.E.2d 667 [2004] ) were indisputably met, it was properly granted.