Lang v. Gianis

In an action to compel specific performance of a contract for the purchase and sale of real property, defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated September 15, 1981, which denied his motion, inter alia, to dismiss the complaint. Order reversed, on the law, with $50 costs and disbursements, and motion to dismiss granted. Even if it could be said that plaintiff’s acts of depositing 10% of the purchase price of the real property in question in escrow, and his ordering of certain investigative reports were unequivocally referable to the challenged contract for its purchase and sale (see Wilson v La Van, 22 NY2d 131; Woolley v Stewart, 222 NY 347, 351; King v Bowdy, 11 AD2d 726), it is clear that by such acts the plaintiff did not substantially change his position in such a way that he cannot be made whole or will sustain substantial damages unless specific performance is decreed (see Woolley v Stewart, supra; Cooley v Lobdell, 153 NY 596; Miller v Ball, 64 NY 286; Cagger v Lansing, 43 NY2d 550, 551; see, generally, 56 NY Jur, Statute of Frauds, §§ 279-281, pp 386-388). Therefore, Special Term erred in denying defendant’s motion to dismiss the complaint for specific performance. O’Connor, J. P., Bracken, Brown and Niehoff, JJ., concur.