Spence v. Curry
| Decision Date | 20 January 1987 |
| Citation | 511 N.Y.S.2d 69,126 A.D.2d 632 |
| Parties | Henry SPENCE, Respondent-Appellant, v. Virginia B. CURRY, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Barton L. Slavin, Brooklyn, for appellant-respondent.
Marcus, Ollman & Kommer, New Rochelle (Barry D. Marcus, of counsel), for respondent-appellant.
Before THOMPSON, J.P., and NIEHOFF, RUBIN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to compel specific performance of a contract to convey real property, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered May 29, 1985, as denied her motion for summary judgment dismissing the complaint and granted that branch of the plaintiff's cross motion which was for summary judgment on his cause of action to compel specific performance, and the plaintiff cross-appeals from so much of the same order as denied that branch of his cross motion which was for summary judgment on his second cause of action to recover damages for breach of contract.
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff.
According to the terms of the contract entered into by the parties, the contract was conditioned upon the purchaser obtaining a mortgage loan commitment within 45 days of the execution of the contract. By subsequent written agreement of the parties, the plaintiff was granted an extension of the time to obtain a mortgage commitment through January 1, 1985. The plaintiff obtained the commitment by means of a letter, dated December 17, 1984, from a lending institution approving his application for a mortgage loan.
The contract provided that the closing was to take place on January 31, 1985. The contract did not specify that time was to be of the essence, and the defendant did not subsequently give notice to the plaintiff to that effect. No closing took place on January 31, 1985. On February 6, 1985, the defendant unilaterally cancelled the contract, and on or about February 20, 1985, the plaintiff commenced the instant action by service of the summons and complaint. The defendant's affidavits raise no triable issue as to any of the foregoing facts.
Time is not of the essence in a contract to convey real property in the absence of a provision making it so, except by clear, unequivocal notice by one of the parties or if special circumstances surrounding its execution so require (see, Tarlo v....
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...of the essence of a contract of purchase and sale of realty in the absence of a clear provision making it so. Spence v. Curry, 126 A.D.2d 632, 511 N.Y.S.2d 69 (2d Dep't 1987). Even if the contract designates a specific date on which performance is to occur, time is not of the essence where ......
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...contract for the purchase and sale of realty in the absence of a clear and unequivocal provision making it so. Spence v. Curry, 126 A.D.2d 632, 511 N.Y.S.2d 69, 70 (2d Dep't 1987). Contrary to debtor's assertions that time was not of the essence due to the fact that the Robis Contract only ......
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