Ardi v. MartinArdi v. Martin
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 own-
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 AD2d 510 [1999], quoting Capozzola v Oxman, 216 AD2d 509, 510 [1995]). 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 NY2d 702, 703 [1978]; R.C.P.S. Assoc. v Karam Devs., 258 AD2d at 510; Capozzola v Oxman, 216 AD2d at 510).
Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the first amended complaint pursuant to
COVELLO, J.P.
ENG, CHAMBERS AND HALL, JJ.
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 own
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 AD2d 510 [1999], quoting Capozzola v Oxman, 216 AD2d 509, 510 [1995]). 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 NY2d 702, 703 [1978]; R.C.P.S. Assoc. v Karam Devs., 258 AD2d at 510; Capozzola v Oxman, 216 AD2d at 510).
Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the first amended complaint pursuant to
Covello, J.P.
Eng, Chambers and Hall, JJ.
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 own
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 AD2d 510 [1999], quoting Capozzola v Oxman, 216 AD2d 509, 510 [1995]). 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 NY2d 702, 703 [1978]; R.C.P.S. Assoc. v Karam Devs., 258 AD2d at 510; Capozzola v Oxman, 216 AD2d at 510).
Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the first amended complaint pursuant to
Covello, J.P.
Eng, Chambers and Hall, JJ.