Dennis Ardi, et al., appellants, v. John S. Martin, et al., respondents.

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

Dennis Ardi, et al., appellants, v. John S. Martin, et al., respondents.

2009-10508 (Index No. 40408/08)

Decided: December 28, 2010

JOSEPH COVELLO, J.P. RANDALL T. ENG CHERYL E. CHAMBERS L. PRISCILLA HALL, JJ. Cinque & Cinque, P.C., New York, N.Y. (James P. Cinque and Dennis Ardi, pro se, of counsel), for appellants. Anthony B. Tohill, P.C., Riverhead, N.Y., for respondents.

Argued-December 10, 2010

DECISION & ORDER

In an action, inter alia, to recover a down payment given pursuant to a contract for the sale of real property, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Suffolk County (Sgroi, J.), entered October 20, 2009, as, upon an order of the same court dated June 4, 2009, granting that branch of the defendants' motion which was to dismiss the first amended complaint pursuant to CPLR 3211(a)(1), is in favor of the defendants and against them dismissing the first amended complaint.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs' contention, the defendants did not make a misrepresentation in the contract of sale that they were the sole owners of the subject premises.   On the date the contract of sale was executed, the defendants were the sole record owners of the subject premises pursuant to a deed dated September 17, 2007 (cf.  S & S Mgt., LLC v. Berk, 65 AD3d 1031).   The subsequent correction deed dated September 30, 2008, which was executed after the contract of sale was executed, merely corrected the percentages of interest conveyed in the September 17, 2007, deed, and did not create a misrepresentation on the part of the defendants (cf.  People v. Tompkins-Kiel Marble Co., 269 N.Y. 77).   Moreover, on the date of the closing, the title company had omitted its exception based on the percentages of interest conveyed in the September 17, 2007, deed, and there was no dispute that the defendants were the sole owners of the premises (cf.  S & S Mgt., LLC v. Berk, 65 AD3d 1031).

Furthermore, “[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” (R.C.P.S. Assoc. v. Karam Devs., 258 A.D.2d 510, quoting Capozzola v. Oxman, 216 A.D.2d 509, 510).   Here, the plaintiffs never appeared at the closing, never tendered performance or demanded good title, and failed to demonstrate that any alleged defects in title were incurable.   Consequently, the plaintiffs never placed the defendants in default and, thus, were not entitled to recover their down payment (see Ilemar Corp. v. Krochmal, 44 N.Y.2d 702, 703;  R.C.P.S. Assoc. v. Karam Devs., 258 A.D.2d at 510;  Capozzola v. Oxman, 216 A.D.2d at 510).

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the first amended complaint pursuant to CPLR 3211(a)(1).

COVELLO, J.P., ENG, CHAMBERS and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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