172 AUDUBON CORP v. Kenneth H. Koons, Defendant. (2005)

Judgment, Supreme Court, Bronx County (Stanley Green, J.), entered June 14, 2004, which, upon the prior grant of defendants-respondents' motion for summary judgment, dismissed the complaint seeking specific performance of a contract for the sale of real property, unanimously affirmed, with costs.   Appeal from order, same court and Justice, entered May 14, 2004, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

As we have already had occasion to observe in this matter, “the unambiguous terms of the parties' contract, as amended by the agreement of August 16, 2002, rescinded the fifth paragraph of the Additional Rider and provided that the buyer would ‘tak[e] subject to the existing C/O’ and that ‘no representation as to the legality of the structure’ had been made by the sellers.   The amendment further provided that the remaining terms of the contract of sale, which included a paragraph that no provision of the contract could be ‘waived, changed or cancelled except in writing,’ remained unchanged” (3 A.D.3d 451, 452-453, 772 N.Y.S.2d 650 [2004] ).   Therefore, there was no contractual basis for plaintiff's insistence at the adjourned closing, on September 6, 2002, for assurances that the C/Os legalized the 10 existing residential tenancies and, indeed, plaintiff breached the contract by refusing to close in the absence of such assurances.   The sellers were under no duty to offer continued performance once plaintiff had breached the contract, particularly since there had been no further adjournment of the closing date, which pursuant to the contract had been scheduled for June 26, 2002.