GUZMAN v. RAMOS (2025)

DECISION & ORDER

In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Richmond County (Judith N. McMahon, J.), dated August 4, 2022.  The order, insofar as appealed from, granted that branch of the defendant's motion which was to confirm a referee's report, denied the plaintiff's cross-motion to reject or modify the referee's report, and, in effect, directed dismissal of the complaint.

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

In May 2015, the plaintiff and the defendant entered into a contract of sale by which the plaintiff was to purchase the defendant's residential property located in Staten Island.  The contract of sale provided a closing date of June 15, 2015.  The transaction failed to close.

In 2016, the plaintiff commenced this action, inter alia, for specific performance of the contract of sale and to recover damages for breach of contract.  The matter was referred to a referee to hear and report, and a trial was conducted.  In a report and recommendation dated May 13, 2022, the referee, upon concluding that the plaintiff had failed to prove her entitlement to specific performance and that she had abandoned the contract of sale, recommended that the complaint be dismissed.

The defendant moved, among other things, to confirm the referee's report, and the plaintiff cross-moved to reject or modify the referee's report.  In an order dated August 4, 2022, the Supreme Court, inter alia, granted that branch of the defendant's motion, denied the plaintiff's cross-motion, and, in effect, directed dismissal of the complaint.  The plaintiff appeals.

CPLR 4403 provides that “[u]pon the motion of any party ․, the judge required to decide the issue may confirm or reject, in whole or in part, ․ the report of a referee to report’ ” (see Matter of DeStefano v. Law Offs. of William Pager, 232 A.D.3d 788, 789, 223 N.Y.S.3d 148).  “ ‘The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” (id., quoting Citimortgage, Inc. v. Kidd, 148 A.D.3d 767, 768, 49 N.Y.S.3d 482).

“ ‘To prevail on a cause of action for specific performance of a contract for the sale of real property, a plaintiff purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law’ ” (Ashkenazi v. Miller, 190 A.D.3d 668, 670, 138 N.Y.S.3d 185, quoting 1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., 152 A.D.3d 474, 475, 58 N.Y.S.3d 485).  “ ‘[T]he plaintiff purchaser must submit evidence demonstrating financial ability to purchase the property in order to demonstrate that [she] was ready, willing, and able to purchase such property’ ” (id., quoting Grunbaum v. Nicole Brittany, Ltd., 153 A.D.3d 1384, 1385, 61 N.Y.S.3d 146).  Further, where “ ‘a contract for the sale of real property does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless of whether the contract designates a specific date for performance’ ” (Rodrigues NBA, LLC v. Allied XV, LLC, 164 A.D.3d 1388, 1389, 83 N.Y.S.3d 650, quoting Point Holding, LLC v. Crittenden, 119 A.D.3d 918, 919, 990 N.Y.S.2d 575).

Here, the referee's finding that the plaintiff failed to prove that she had the financial ability to purchase the property within a reasonable time after entering into the contract, despite being denied a mortgage, was substantially supported by the record (see GLND 1945, LLC v. Ballard, 172 A.D.3d 1330, 1331, 102 N.Y.S.3d 78;  Armonk Snack Mart, Inc. v. Robert Porpora Realty Corp., 138 A.D.3d 1045, 1046, 31 N.Y.S.3d 523).

Moreover, “[a] contract will be treated as abandoned when one party acts in a manner inconsistent with the existence of the contract and the other party acquiesces in that behavior.  That is, the refusal of one party to perform [the] contract amounts to an abandonment of it, leaving the other party to his [or her] choice of remedies, but his [or her] assent to abandonment dissolves the contract so that he [or she] can neither sue for a breach nor compel specific performance” (Aliperti v. Laurel Links, Ltd., 27 A.D.3d 675, 676, 810 N.Y.S.2d 921 [internal quotation marks omitted]).  “[A]bandonment of a contract need not be express, but may be inferred from the conduct of the parties and the attendant circumstances” (Chowdhury v. Thomas, 186 A.D.3d 794, 795, 127 N.Y.S.3d 796 [internal quotation marks omitted];  see Brisk v. Bloch, 165 A.D.3d 745, 747, 86 N.Y.S.3d 110).

Here, the referee's finding that the plaintiff abandoned the contract of sale and pursued a new transaction with the defendant in 2016 was substantially supported by the record (see Brisk v. Bloch, 165 A.D.3d at 747, 86 N.Y.S.3d 110).

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to confirm the referee's report, denied the plaintiff's cross-motion to reject or modify the referee's report, and, in effect, directed dismissal of the complaint.

BARROS, J.P., IANNACCI, WAN and GOLIA, JJ., concur.