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Supreme Court, Appellate Division, Fourth Department, New York.

EC, L.L.C., Plaintiff-Respondent, v. EAGLECREST MANUFACTURED HOME PARK, INC., Defendant-Appellant.  (Appeal No. 2.)

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER and BALIO, JJ. Charles C. Swanekamp, Buffalo, for Defendant-Appellant. Edward S. Bloomberg, Buffalo, for Plaintiff-Respondent.

Defendant entered into a contract for the sale of its real property to Richard B. Kellam Associates, Inc., which later assigned the contract to plaintiff.   Defendant terminated the contract by a letter dated February 2, 1998, and plaintiff thereafter commenced this action seeking specific performance of the contract and damages for breach of contract.   Supreme Court denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint and, upon reargument, adhered to its prior decision.   Contrary to defendant's contention, the court acted within its discretion in granting reargument (see, Dixon v. New York Cent. Mut. Fire Ins. Co., 265 A.D.2d 914, 695 N.Y.S.2d 826).   In any event, the court properly adhered to its prior decision upon reargument.

The contract, dated May 23, 1997, did not recite a specific closing date, but it is undisputed that the parties anticipated that the closing would occur in August 1997.   The parties signed an addendum to the contract in September 1997 providing that the closing would occur on January 31, 1998 or sooner.   The addendum to the contract did not recite that time was of the essence (see, Levine v. Sarbello, 112 A.D.2d 197, 199-200, 491 N.Y.S.2d 419, affd. 67 N.Y.2d 780, 501 N.Y.S.2d 22, 492 N.E.2d 130).   On January 13, 1998, plaintiff requested an extension of the closing date.   Defendant, by letter and fax dated January 13, 1998, informed plaintiff that it would “not grant any extension of contract, performance or closing beyond January 31, 1998.”   Plaintiff again requested an extension by letter dated January 20, 1998, but noted that, if defendant did not agree to extend the closing date, plaintiff would close by the end of the month.   Defendant responded on January 22 and 26, 1998, reiterating that it would not extend the contract or closing beyond January 31.

 One party to a contract for the sale of real property may unilaterally determine that time is of the essence with respect to a specified closing date (see, Zev v. Merman, 134 A.D.2d 555, 557, 521 N.Y.S.2d 455, affd. 73 N.Y.2d 781, 536 N.Y.S.2d 739, 533 N.E.2d 669).   Here, defendant made time of the essence with respect to the January 31 closing date by clear and unequivocal notice and provided plaintiff with a reasonable time in which to act (see, Zev v. Merman, supra, at 557, 521 N.Y.S.2d 455;  Levine v. Sarbello, supra, at 200, 491 N.Y.S.2d 419;  Miller v. Almquist, 241 A.D.2d 181, 185, 671 N.Y.S.2d 746).   The notices warned plaintiff that its failure to close on that date would result in a default (see, Zev v. Merman, supra, at 557-558, 521 N.Y.S.2d 455).   Defendant gave plaintiff a reasonable time to perform the contract, particularly in view of the fact that the parties initially anticipated a closing date in August 1997.   In addition, plaintiff acknowledged by its letter dated January 20, 1998 that it could close by the end of the month.   Plaintiff's failure to close on January 31 constituted a material breach of the contract (see, Palmiotto v. Mark, 145 A.D.2d 549, 549-550, 536 N.Y.S.2d 101, lv. denied 74 N.Y.2d 608, 545 N.Y.S.2d 104, 543 N.E.2d 747;  cf., Wilkinson v. Hoelscher, 163 A.D.2d 819, 558 N.Y.S.2d 353).

 Even if defendant did not make time of the essence with respect to the January 31st closing date, it nonetheless was entitled to summary judgment dismissing the complaint.   By letter sent to defendant dated February 2, 1998, plaintiff stated that a new closing date was set for February 12, 1998, and declared that time was of the essence.   Defendant met its burden of establishing that plaintiff was not ready, willing, and able to perform its obligations under the contract by February 12, 1998, and plaintiff failed to raise an issue of fact (see, Zev v. Merman, supra, at 557, 521 N.Y.S.2d 455;  Scull v. Sicoli, 247 A.D.2d 852, 853, 668 N.Y.S.2d 827;  Provost v. Off Campus Apts. Co., II, 211 A.D.2d 850, 851, 620 N.Y.S.2d 622).

Order unanimously affirmed without costs.


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