1539 REALTY LLC v. MURPHY (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Thomas Rademaker, J.), entered September 19, 2024.  The order denied the plaintiff's motion for summary judgment on the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff entered into a contract to sell certain real property to the defendant Michael Murphy (hereinafter the contract), pursuant to which Murphy made a down payment on the purchase price, which was held in escrow.  The contract provided a closing date and specified that time was of the essence as against the purchaser.  Murphy and the defendant 1539 Franklin, LLC, to which Murphy assigned his rights and obligations under the contract, sought an adjournment of the closing date so as to perform further environmental testing of the subject property.  The plaintiff indicated that it would adjourn the closing date four days, with time being of the essence.  When the defendants did not appear on the adjourned closing date, the plaintiff informed them that the contract had been terminated.

The plaintiff then commenced this action, inter alia, to recover damages for breach of contract, seeking to retain the down payment.  After joinder of issue, the plaintiff moved for summary judgment on the complaint.  In an order entered September 19, 2024, the Supreme Court denied the motion.  The plaintiff appeals.

“Where a seller seeks to hold a purchaser in breach of contract, the seller must establish that he or she was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close” (Duvernay v. Qiao, 240 A.D.3d 855, 857, 240 N.Y.S.3d 426 [internal quotation marks omitted];  see Perelmuter v. LRM Bldrs., LLC, 230 A.D.3d 1165, 1166–1167, 219 N.Y.S.3d 343).  Here, in light of the plaintiff's obligations at closing provided for in the contract, the plaintiff's bare assertion that it tendered the deed in the defendants' absence was insufficient to establish, prima facie, that the plaintiff was ready, willing, and able to perform on the adjourned closing date.  As the plaintiff failed to make an evidentiary showing of its prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint, regardless of the sufficiency of the defendants' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The parties' remaining contentions either are without merit or need not be considered in light of our determination.

IANNACCI, J.P., DOWLING, LANDICINO and LOVE, JJ., concur.