American Funding, Inc. v. Petbar Realty Co.

—Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered November 19, 1996, which, in an action for specific performance of a contract for the sale of real property, granted plaintiff buyer’s motion to reargue a prior order granting defendant seller’s motion for summary judgment, and, upon reargument, granted plaintiff summary judgment upon a search of the record, unanimously affirmed, with costs. The record establishes that plaintiff was able and willing to perform, defendants were unable to convey "free and clear of any liens and violations” as required by the contract. Any issue that defendants remove asbestos from the building basement was not raised until long after defendants defaulted (see, 259 United States v 0.35 Acre of Land, 706 F Supp 1064, 1074). The provision for a $500,000 loan from defendant to plaintiff, "in order to assist Purchaser to finance the purchase of the Property”, was clearly for plaintiff’s benefit, and therefore could be waived by plaintiff (see, Poteralski v Colombe, 84 AD2d 887). Concur—Murphy, P. J., Milonas, Mazzarelli and Andrias, JJ.