FELIPE v. 2820 WEST 36TH STREET REALTY CORP (2005)

In an action for specific performance of a contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (M. Garson, J.), dated December 15, 2004, which granted the defendant's motion for summary judgment dismissing the complaint and directed the Kings County Clerk to vacate the notice of pendency filed against the subject premises.

ORDERED that the order is affirmed, with costs.

The plaintiffs conceded that at the time they executed the contract of sale, the contract was not yet executed by the defendant. Moreover, it is undisputed that the defendant did not subsequently mail a fully-executed copy of the contract to the plaintiffs' attorney, as expressly required under paragraph 17 of the rider to the contract.   Because the delivery requirement was a condition precedent to the formation of any binding agreement, it could not be waived by the defendant (see Brois v. DeLuca, 154 A.D.2d 417, 546 N.Y.S.2d 3;  see also Manhattan Theatre Club v. Bohemian Benevolent & Literary Assn. of City of N.Y., 64 N.Y.2d 1069, 1070-1071, 489 N.Y.S.2d 877, 479 N.E.2d 222;  Schwartz v. Greenberg, 304 N.Y. 250, 107 N.E.2d 65).   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint and to direct the Kings County Clerk to vacate the notice of pendency (see Raanan v. Tom's Triangle, 303 A.D.2d 668, 669, 758 N.Y.S.2d 343).

The parties' remaining contentions are without merit.