SAU TING CHENG v. PRIME DESIGN REALTY INC (2007)

In an action to recover damages for breach of contract, and for specific performance of a contract for the sale of real property, the plaintiff appeals from (1) a judgment of the Supreme Court, Queens County (Weiss, J.), entered July 24, 2006, which, upon an order of the same court (Polizzi, J.), dated January 25, 2006, inter alia, denying those branches of her motion which were to strike the answer of the defendant Prime Design Realty, Inc., pursuant to CPLR 3216 and, in effect, for leave to renew that branch of her prior cross motion which was for summary judgment on the complaint which had been determined in an order dated October 8, 2004, after a nonjury trial, upon the granting of the motion of the defendant Prime Design Realty, Inc., pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case, and upon an order of the same court (Weiss, J.) entered May 31, 2006, denying the plaintiff's motion, in effect, for leave to reargue the motion of the defendant Prime Design Realty, Inc., pursuant to CPLR 4401, is in favor of the defendant Prime Design Realty, Inc., and against her dismissing the complaint insofar as asserted against it, and (2) an order of the same court dated October 30, 2006.

ORDERED that the appeal from the order dated October 30, 2006, is dismissed as abandoned (see 22 NYCRR 670.8[e] );  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondent.

 The Supreme Court providently exercised its discretion in declining to strike the answer of the defendant Prime Design Realty, Inc., in light of its ultimate compliance with court-ordered discovery, and because its conduct was not willful and contumacious (see CPLR 3126;  Resnick v. Schwarzkopf, 41 A.D.3d 573, 836 N.Y.S.2d 415;  Lawrence v. City of New York, 252 A.D.2d 482, 675 N.Y.S.2d 559).

Even if there was “significant discovery outstanding” so as to constitute good cause for the plaintiff's delay in seeking, in effect, leave to renew that branch of her cross motion which was for summary judgment on the complaint (see Tower Ins. Co. of N.Y. v. Razy Assoc., 37 A.D.3d 702, 830 N.Y.S.2d 726;  Sclafani v. Washington Mut., 36 A.D.3d 682, 829 N.Y.S.2d 553;  Czernicki v. Lawniczak, 25 A.D.3d 581, 806 N.Y.S.2d 876;  Herrera v. Felice Realty Corp., 22 A.D.3d 723, 804 N.Y.S.2d 397), the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law by offering sufficient evidence to remove from consideration any triable issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Huntington Min. Holdings v. Cottontail Plaza, 96 A.D.2d 526, 465 N.Y.S.2d 40, affd. 60 N.Y.2d 997, 471 N.Y.S.2d 267, 459 N.E.2d 492;  Chernow v. Chernow, 39 A.D.3d 684, 686, 833 N.Y.S.2d 660;  Del Pozo v. Impressive Homes, Inc., 29 A.D.3d 620, 814 N.Y.S.2d 734;  Madison Equities, LLC v. MZ Management Corp., 17 A.D.3d 639, 640, 794 N.Y.S.2d 404;  Internet Homes, Inc. v. Vitulli, 8 A.D.3d 438, 778 N.Y.S.2d 534;  Madison Invs. v. Cohoes Assoc., 176 A.D.2d 1021, 1022, 574 N.Y.S.2d 980).

 The trial court properly granted the motion of the defendant Prime Design Realty, Inc. (hereinafter Prime Design), pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case, and properly dismissed the complaint.   The plaintiff failed to meet her prima facie burden on her cause of action for specific performance of a contract for the sale of real property because she failed to show that she was financially able to buy the real property in question even as of the date of trial (see Djukanovic v. D'Amico, 40 A.D.3d 576, 833 N.Y.S.2d 401;  3M Holding Corp. v. Wagner, 166 A.D.2d 580, 581-582, 560 N.Y.S.2d 865;  Zev v. Merman, 134 A.D.2d 555, 557, 521 N.Y.S.2d 455;  see also Stojowski v. D'Sa, 28 A.D.3d 645, 813 N.Y.S.2d 753;  Buoninfante v. Legacy Development USA Corp., 306 A.D.2d 511, 761 N.Y.S.2d 864).

The trial court providently exercised its discretion in denying the plaintiff's request for an adjournment of the trial (see Colon v. Bailey, 26 A.D.3d 454, 455, 810 N.Y.S.2d 511;  Telford v. Laro Maintenance Corp., 288 A.D.2d 302, 303, 732 N.Y.S.2d 882;  Zavurov v. City of New York, 241 A.D.2d 491, 493, 659 N.Y.S.2d 897;  see also Matter of Paulino v. Camacho, 36 A.D.3d 821, 822, 828 N.Y.S.2d 496;  Matter of Westchester County Dept. of Social Servs. v. Felicia R., 215 A.D.2d 671, 672-673, 628 N.Y.S.2d 133).

The plaintiff's remaining contentions are either without merit or not properly before us.