Greven v. Muir

In an action to compel specific performance of a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated August 8, 1985, which denied his motions to cancel a notice of pendency filed against the 754 subject property, and for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the motions are granted, the notice of pendency filed against the subject property is hereby discharged and canceled, summary judgment is granted to the defendant, and the complaint is dismissed. Because the plaintiffs, in a prior action, had asserted that the contract between them and the defendant had been canceled, they are bound by their first choice, and may not now, in a separate action, claim that the contract was still valid and seek specific performance thereof (see, Whalen v Stuart, 194 NY 495, 505, rearg denied 195 NY 524; Matter of Garver, 176 NY 386, 394; Terry v Munger, 121 NY 161, 167). As the defendant’s motion for summary judgment is granted, the notice of pendency filed in this action is hereby discharged and canceled of record (see, CPLR 6514 [a]). Bracken, J. P., Brown, Lawrence and Eiber, JJ., concur.