GOLD v. FIRST STOP TIRE SHOP INC (2008)

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant First Stop Tire Shop, Inc., appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated September 22, 2006, which granted that branch of the plaintiff's motion which was, inter alia, for summary judgment directing specific performance of the contract, and, in effect, denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, that branch of the plaintiff's motion which was, inter alia, for summary judgment directing specific performance of the contract is denied, and the appellant's cross motion for summary judgment dismissing the complaint insofar as asserted against it is granted.

On its cross motion, the appellant demonstrated its prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against it (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572), by establishing that its cancellation of the contract for the sale of the subject properties pursuant to a particular contractual provision was valid (see Ambalu v. Rosenthal, 29 A.D.3d 499, 500, 813 N.Y.S.2d 672;  Nesdale v. Banister, 18 A.D.3d 841, 795 N.Y.S.2d 458).   Specifically, the appellant established that after the plaintiff was unable to timely procure a mortgage loan for his purchase of the subject properties, the appellant properly exercised its right to cancel the contract pursuant to a mortgage contingency clause inuring to the benefit of both the plaintiff and the appellant (see Degree Sec. Sys., Ins. v. F.A.B. Land Corp., 17 A.D.3d 402, 402-403, 794 N.Y.S.2d 62;  Ferlita v. Guarneri, 136 A.D.2d 680, 681, 524 N.Y.S.2d 94;  Dale Mtge. Bankers Corp. v. 877 Stewart Ave. Assoc., 133 A.D.2d 65, 66-67, 518 N.Y.S.2d 411).   In opposition, the plaintiff failed to raise a triable issue of fact.   Accordingly, the Supreme Court should have granted the appellant's cross motion and denied that branch of the plaintiff's motion which was, inter alia, for summary judgment directing specific performance of the contract (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).