Meighan v. Rodriguez

• Decision Date: 01 October 2001
• Citation: 730 N.Y.S.2d 876,287 A.D.2d 442
• Court: New York Supreme Court — Appellate Division
• Parties: MELVIN MEIGHAN et al., Respondents,<BR>v.<BR>RICARDO RODRIGUEZ et al., Appellants.

287 A.D.2d 442
730 N.Y.S.2d 876

MELVIN MEIGHAN et al., Respondents,
v.
RICARDO RODRIGUEZ et al., Appellants.

Decided October 1, 2001.

Friedmann, J. P., Florio, Smith and Cozier, JJ., concur.

Ordered that the appeal from so much of the judgment as awarded the plaintiffs specific performance is dismissed; and it is further,

Ordered that the judgment is affirmed insofar as reviewed; and it is further,

Ordered that within 30 days after service upon the defendants of a copy of this decision and order, with notice of entry, the parties are directed to schedule an appraisal, inspection, and closing of the subject property; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

On July 9, 1997, the plaintiffs entered into a contract for the purchase of the defendants' real property, which provided that the closing would occur on October 15, 1997. In September 1997 the defendants sought to cancel the contract, claiming that the plaintiffs had not met the contract deadline for obtaining a mortgage commitment.

The plaintiffs, in turn, claimed that they were ready, willing, and able to perform under the terms of the contract, and commenced this action for specific performance. The Supreme Court, inter alia, granted the plaintiffs' motion for summary judgment, holding that the mortgage contingency clause did not grant the defendants the option to cancel the contract in

[287 A.D.2d 443]

the event that the plaintiffs failed to obtain a mortgage commitment by a certain date.

On September 23, 1998, the Supreme Court signed a judgment (hereinafter the first judgment) which granted the plaintiffs specific performance, directed the defendants to make the premises accessible to the plaintiffs' lender for appraisal and inspection on October 21, 1998, and ordered that the closing take place on November 20, 1998.

The defendants filed a notice of appeal from the judgment, which was subsequently dismissed by decision and order of this Court on October 10, 1999, for failure to timely perfect the appeal.

On December 1, 1998, the defendants moved, inter alia, for leave to renew and reargue the plaintiffs' motion for summary judgment. Although denominated as a cross motion for resettlement, the plaintiffs, in effect, cross-moved for leave to renew their motion for summary judgment for the purpose of amending the date fixed for appraisal and to fix a date for the closing of title to the property. The plaintiffs' counsel maintained that his office...