BRADENTON REALTY CORP v. United Artists Theatre Circuit, Inc., defendant-respondent, et al., defendant. (1999)

In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from so much an order of the Supreme Court, Kings County (Vaughan, J.), dated February 27, 1998, as denied its motion for summary judgment on the complaint and granted those branches of the cross motion of defendants United Artists Properties I Corp. and United Artists Theater Circuit, Inc., which were for summary judgment dismissing the complaint insofar as asserted against them, and the defendant United Artists Properties I Corp. cross-appeals from so much of the same order as, in effect, dismissed its first counterclaim.

ORDERED that the order is affirmed, without costs or disbursements.

We agree with the Supreme Court that the defendant United Artists Properties I Corp. (hereinafter UA) was not required to proceed to closing since an express condition precedent in the contract regarding a mortgage release was not satisfied (see, Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 636 N.Y.S.2d 734, 660 N.E.2d 415;  Marcantonio v. Rousso, 257 A.D.2d 650, 684 N.Y.S.2d 567).

Under the circumstances of this case, the court was correct in dismissing UA's first counterclaim for damages and in directing the return of the plaintiff's deposit (cf., Albany Motor Inn & Rest. v. Watkins, 85 A.D.2d 797, 445 N.Y.S.2d 616).

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.