HERBST v. 1514 EASTERN PARKWAY LTD (2007)

In an action for specific performance of a contract for the sale of real property, the defendant 1514 Eastern Parkway, Ltd., appeals from a judgment of the Supreme Court, Kings County (Held, J.), dated August 16, 2006, which, after a nonjury trial, is in favor of the plaintiff and against it directing, inter alia, specific performance of the subject contract for the sale of real property.

ORDERED that the judgment is affirmed, with costs.

 Where a case is tried without a jury, the power of the Appellate Division is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial judge had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;  Musick v. 330 Wythe Ave. Assoc. LLC, 41 A.D.3d 675, 675, 838 N.Y.S.2d 620).   Here, there was sufficient evidence demonstrating that the appellant, on the basis of a mortgage contingency clause that ran solely to the benefit of the purchaser, repudiated the subject contract in a manner constituting an anticipatory breach (see Goldstein v. Held, 37 A.D.3d 657, 658, 830 N.Y.S.2d 348;  Coneys v. Game, 141 A.D.2d 795, 530 N.Y.S.2d 23), and that the plaintiff, as assignee of the defendant Aaron Fromowitz, was ready, willing, and able to perform his obligations under the subject contract (see Goldstein v. Held, 37 A.D.3d at 658, 830 N.Y.S.2d 348).

The appellant's remaining contentions are without merit.