STERNLICHT v. FERRARA (2006)

In an action, inter alia, for breach of a contract for the sale of real property, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated March 22, 2005, as denied those branches of her motion which were for summary judgment on the first and third causes of action in the complaint and to dismiss the defendants' first counterclaim.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Under the particular circumstances of this case, a triable issue of fact exists as to whether the plaintiff's notice on January 26, 2004, setting a closing for February 17, 2004, was reasonable (see Ben Zev v. Merman, 73 N.Y.2d 781, 783, 536 N.Y.S.2d 739, 533 N.E.2d 669;  Miller v. Almquist, 241 A.D.2d 181, 185-186, 671 N.Y.S.2d 746).   The defendants also raised a triable issue of fact as to the reasonableness of selecting a law date for a time the defendants' attorney was known to be unavailable or whether the defendants' attorney was acting unreasonably in failing to make himself available at the scheduled closing or any agreed-upon closing date.