1625 MARKET CORP v. 49 FARM MARKET INC (2018)

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered November 28, 2016, which, to the extent appealed from as limited by the briefs, denied defendant's motion pursuant to CPLR 5015(a)(1) to vacate an order entered on default, unanimously affirmed, without costs.

Defendant failed to demonstrate a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ).  The record establishes that defendant elected not to perform under the parties' agreement in advance of the closing date, regardless of whether plaintiff would fulfill its contractual obligations prior to closing.

Defendant's anticipatory repudiation defense is unsupported by proof of a definite and final communication by plaintiff of its intention not to perform (see Jacobs Private Equity, LLC v. 450 Park LLC, 22 A.D.3d 347, 803 N.Y.S.2d 14 [1st Dept. 2005], lv denied 6 N.Y.3d 703, 811 N.Y.S.2d 336, 844 N.E.2d 791 [2006] ).

Defendant's argument, raised for the first time on appeal, that plaintiff's counsel violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 4.2(a) (“Communication with person represented by counsel”) does not pose a pure question of law, and will not be considered (see Gonzalez v. New York City Health & Hosps. Corp., 29 A.D.3d 369, 370, 815 N.Y.S.2d 53 [1st Dept. 2006] ).

We have considered plaintiff's remaining contentions and find them unavailing.