NUZZI FAMILY LIMITED LIABILITY COMPANY v. New York State Department Of Environmental Conservation, Respondent. (2003)

In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, the plaintiff appeals from so much of (1) an order of the Supreme Court, Suffolk County (Floyd, J.), dated March 29, 2002, as, upon granting the motion of the defendant New York State Department of Environmental Conservation for leave to renew that branch of its prior motion which was for summary judgment on its counterclaim to compel specific performance of a contract for the sale of real property, granted that branch of the motion, and (2) a judgment of the same court, dated July 17, 2002, as, upon the order, dismissed the complaint and is in favor of the defendant New York State Department of Environmental Conservation and against it on the counterclaim, directing it to convey the subject to property to the State of New York.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

 Before specific performance of a contract for the sale of real property may be granted, a purchaser must demonstrate that it was ready, willing, and able to perform on the original law day or, if time is not of the essence, on a subsequent date fixed by the parties or within a reasonable time thereafter (see Goller Place Corp. v. Cacase, 251 A.D.2d 287, 672 N.Y.S.2d 923;  Provost v. Off Campus Apts. Co., II, 211 A.D.2d 850, 851, 620 N.Y.S.2d 622).   The defendant New York State Department of Environmental Conservation (hereinafter the DEC) established its prima facie entitlement to judgment as a matter of law since it demonstrated that it was ready, willing, and able to close the sale (see Goller Place Corp, supra).   In opposition, the plaintiff seller failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Neither the contract nor the circumstances surrounding its execution indicated that time was of the essence, and independent notice that time was of the essence was never given (see Spence v. Curry, 126 A.D.2d 632, 633, 511 N.Y.S.2d 69).   Furthermore, contrary to the plaintiff's contention, the contract did not contain a condition precedent that its validity or the plaintiff's performance under the contract required its assignment to the DEC by a date certain (see W.W.W. Associates v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639;  Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 56, 421 N.Y.S.2d 556, 396 N.E.2d 1029).

The plaintiff's remaining contentions are without merit.