Woody's Lumber Co. v. Jayram Realty Corp.

Dec 18, 2007
Versions:46 A.D.3d 804
847 N.Y.S.2d 643

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated December 19, 2006, as granted those branches of the plaintiff‘s motion which were to vacate a stipulation of discontinuance and a stipulation cancelling a lis pendens and to reinstate the action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff established its entitlement to vacatur of a stipulation of discontinuance and a stipulation cancelling a lis pendens. The Supreme Court correctly concluded that the plaintiff‘s default under an escrow agreement, by delivering the duly executed and notarized note one day late, was inadvertent and minor and the result of miscommunication between the parties. Accordingly, the defendant‘s attempt to take advantage of a technical default was properly rejected by the Supreme Court (see Weitz v Murphy, 241 AD2d 547, 548-549 [1997]; Bank of N.Y. v Forlini, 220 AD2d 377, 378 [1995]; Goldstein v Goldsmith, 243 App Div 268, 272 [1935]).

The defendant‘s remaining contentions are without merit.

Crane, J.P., Rivera, Angiolillo and Dickerson, JJ., concur.