| N.Y. App. Div. | Jul 6, 1995
Order, Supreme Court, New York County (Ira Gammerman, J.), entered May 23, 1994, which in an action to recover the down payment in a contract for the sale of real property and related expenses, granted plaintiff’s motion for summary judgment, unanimously affirmed, with costs.
Plaintiff buyer was entitled to cancel the contract without a showing of tender or ability to pay, because defendants’ title was incurably defective, constituting only seven-eighths interest in the subject property, and thus defendants were in automatic breach (see, Cohen v Kranz, 12 NY2d 242, 246, 247). Defendants’ misrepresentation in the contract that they possessed full title was a misrepresentation that also justified plaintiff’s cancellation of the contract (see, Junius Constr. Corp. v Cohen, 257 NY2d 393, 400). Concur—Sullivan, J. P., Ellerin, Wallach, Williams and Mazzarelli, JJ.