123 A.D.2d 419 | N.Y. App. Div. | 1986
In an action for specific performance of a contract for the sale of realty and for an accounting, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County (Hurowitz, J.), dated February 8, 1985, as dismissed
Judgment reversed, on the law and the facts, with costs, the plaintiff is awarded judgment on its cause of action for specific performance, the cause of action for an accounting is severed, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate judgment and further proceedings on the plaintiff’s cause of action for an accounting.
Where a contract for the conveyance of real property does not contain a specific declaration that time is of the essence, the law permits the parties a reasonable time in which to tender performance, regardless of whether the contract designates a specific date on which such performance is to be tendered (see, Grace v Nappa, 46 NY2d 560, 565; Mader v Mader, 101 AD2d 881, 882). When this matter was before us on a prior appeal, we held that neither the original contract nor the contract as modified contained the requisite declaration making time of the essence, nor had the defendants served upon the plaintiff a clear, unequivocal notice to that effect (see, 4200 Ave. K Realty Corp. v 4200 Realty Co., 89 AD2d 978). Moreover, paragraph 60 of the contract effectively permitted the purchaser to adjourn the closing date for as much as 10 days with impunity. Thus, the plaintiff purchaser’s assertion that it was prepared to close as of January 7, 1980, which was within 10 days of the law day fixed in the contract, as amended, was timely, and we cannot agree with the trial court’s conclusion that the brief delay was attributable to bad faith on the part of the plaintiff purchaser. It appears, rather, that the adjournment was occasioned by the need to secure the consent of the mortgagee bank to the transfer, and there is simply no evidence of criminal, immoral or unconscionable conduct which would warrant the denial of the equitable remedy of specific performance (see, National Distillers & Chem. Corp. v Seyopp Corp., 17 NY2d 12, 15; Seagirt Realty Corp. v Chazanof 13 NY2d 282). In addition, the defendant sellers failed to demonstrate any substantial prejudice or injury resulting from the delay so as to warrant the denial of specific performance (see, Black v National Org., 104 AD2d 1016).
Accordingly, the plaintiff established its entitlement to specific performance, and the matter must be remitted for entry