ASSOCIATES v. (And a Third-Party Action). (1999)

In an action to foreclose a mortgage, the defendant appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Westchester County (Rudolph, J.), dated October 22, 1997, as, after a jury trial and the denial of its motion pursuant to CPLR 4404(a) for judgment as a matter of law or a new trial, dismissed its cross claims against Karam Developers, Joseph Berardi, and Chas. H. Sells, Inc. to foreclose a vendee's lien, recover damages for breach of a contract of sale, and recover its down payment.

ORDERED that the judgment is affirmed insofar as appealed from, with costs to the respondents Karam Developers and Joseph Berardi.

 The respondent Karam Developers (hereinafter Karam) entered into a contract to sell land to the appellant.   After a trial, a jury found, inter alia, that although Karam had breached several contractual representations, none of the breaches constituted a substantial and material breach of the contract, and that the appellant had breached the contract by declaring Karam in default and terminating the contract.   Contrary to the appellant's contention, the execution by Karam of two mortgages on the subject property did not render it unable to perform the contract as a matter of law.   It is well settled that “[i]n order to place the vendor of realty under a contract of sale in default for a claimed failure to provide clear title, the purchaser normally must first tender performance himself and demand good title” (Capozzola v. Oxman, 216 A.D.2d 509, 510, 628 N.Y.S.2d 777, quoting Ilemar Corp. v. Krochmal, 44 N.Y.2d 702, 703, 405 N.Y.S.2d 444, 376 N.E.2d 917;  see also, Cohen v. Kranz, 12 N.Y.2d 242, 238 N.Y.S.2d 928, 189 N.E.2d 473;  Oxford Funding Corp. v. James H. Northrup, Inc., 130 A.D.2d 722, 516 N.Y.S.2d 33).   Tender of performance is excused only where the title defect is not curable, for in such a case the tendering of performance would be an idle and useless ceremony (see, Ilemar Corp. v. Krochmal, supra).   Here, the appellant failed to establish that any defects in title were incurable (see, 91 N.Y. Jur. 2d, Real Property Sales and Exchanges, § 145), and never tendered performance or demanded good title from Karam.   Accordingly, the appellant never placed Karam in default, and its advance rejection of title and demand for the return of its down payment constituted an anticipatory breach of contract.   Under these circumstances, the Supreme Court properly denied the appellant's motion for judgment as a matter of law or for a new trial, and properly dismissed its cross claims to foreclose a vendee's lien, to recover damages for breach of the contract of sale, and to recover its down payment.

The appellant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.