Kevan v. Modesta

Mar 4, 2002
Versions:292 A.D.2d 348
738 N.Y.S.2d 382
2002 N.Y. App. Div. LEXIS 2179

In an action for specific performance of a contract for the sale of real property, the defendant appeals from (1) a decision of the Supreme Court, Westchester County (Zambelli, J.), dated January 12, 2001, and (2) a judgment of the same court, dated February 17, 2001, which, after a non-jury trial, is in favor of the plaintiff and against the defendant.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The letter from the defendant seller’s attorney to the plaintiff buyer’s attorney stating that closing would take place “on or prior to” a stated date did not make time of the essence (see, O’Connell v Clear Holding Co., 126 AD2d 530). In any event, the designation of a stated date failed to afford the plaintiff a reasonable time within which to close on the parties’ contract (see, Knight v McClean, 171 AD2d 648, 650). Therefore, the defendant’s refusal to close on a subsequent date constituted a breach of the contract and, under the circumstances presented, the plaintiff purchaser is entitled to specific performance.

The defendant’s remaining contentions are without merit. S. Miller, J.P., Schmidt, Crane and Cozier, JJ., concur.