28 PROPERTIES INC v. Biryani Corp., Defendant. (2005)

Supreme Court, Appellate Division, First Department, New York.

28 PROPERTIES, INC., Plaintiff-Appellant, v. AKLEH REALTY CORP., et al., Defendants-Respondents, Biryani Corp., Defendant.

Decided: October 27, 2005

ANDRIAS, J.P., SAXE, FRIEDMAN, NARDELLI, MALONE, JJ.

Theodore S. Steingut, New York, for appellant. Nicholas L. Kass, Kew Gardens, for respondents.

Judgment, Supreme Court, New York County (Kibbie F. Payne, J.), entered March 11, 2005, which, after a nonjury trial, dismissed plaintiff's claim for specific performance, unanimously affirmed, without costs.

The trial evidence comported with the court's conclusion that plaintiff did not meet its burden to demonstrate that it was, within a reasonable time after the non-time of the essence closing date, ready, willing and able to tender performance of its obligations as purchaser under the parties' real estate contract (see Goller Place Corp. v. Cacase, 251 A.D.2d 287, 672 N.Y.S.2d 923 [1998] ). Plaintiff failed to demonstrate until some four years subsequent to the original closing date that it was financially able to close. That defendants may, in the interim, have anticipatorily breached the contract, did not excuse plaintiff from a timely tender of its performance, if the contract was to be specifically enforced (see Internet Homes, Inc. v. Vitulli, 8 A.D.3d 438, 778 N.Y.S.2d 534 [2004] ).

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