Forde v. Rizzo

In an action for specific performance of a contract for the sale of real property, the defendant appeals from so much of an order of the Supreme Court, Queens County (Nahman, J.), dated September 17, 1990, as denied his motion for summary judgment, and the plaintiff cross-appeals from so much of the same order as denied his cross motion for summary judgment. Ordered that the order is affirmed insofar as appealed from; and it is further, Ordered that the order is reversed insofar as cross-appealed from, on the law, the plaintiff’s cross motion is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment in favor of the plaintiff on the complaint directing specific performance of the subject contract; and it is further, Ordered that the plaintiff is awarded one bill of costs. The Supreme Court erred in denying the plaintiff purchaser specific performance of the contract of sale, which the defendant seller purportedly canceled due to his failure to obtain title to one of the lots which was the subject of the contract of sale. Subsequent to canceling the contract, the defendant regained title to that parcel. The defendant seller’s conduct during the extensive period of delay in regaining title to the lot in question evinced a waiver of the contractual right to cancel the contract (see, Kaufman v Haverstraw Rd. Lands, 158 AD2d 675). Bracken, J. P., Copertino, Pizzuto and Santucci, JJ., concur.