Engels v. French

—In an action, inter alia, to recover damages for breach of a contract to purchase real property, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Cowhey, J.), entered July 1, 1999, as denied their motion for summary judgment on the first, fourth, and fifth causes of action to rescind the contract and to recover the down payment, and granted those branches of the cross motion of the defendants Robert French and Suzanne French which were for summary judgment on the first and third counterclaims to retain the down payment. Ordered that the order is affirmed insofar as appealed from, with costs. Although the plaintiffs, the purchasers of the subject property, had declared that time was of the essence and had advised the respondents that the closing had to occur by May 13, 1998, they cancelled the contract of sale on May 11, 1998, after discovering that the basement was not free of leaks as required by the contract. Because the defendants were entitled to attempt to cure the leakage problem before the law date, the Supreme Court properly concluded that the plaintiffs had anticipatorily breached the contract, and properly awarded summary judgment to the defendants on their counterclaims to retain the down payment (see, Ilemar Corp. v Krochmal, 44 NY2d 702; Cohen v Kranz, 12 NY2d 242, 246-247; R.C.P.S. Assocs. v Karam Developers, 258 AD2d 510; Capozzola v Ox-man, 216 AD2d 509; Lip shy v Sabbeth, 134 AD2d 409). Contrary to our dissenting colleague’s conclusion, the plaintiffs 545 failed to submit any evidence that the leaking condition could not be cured by the law date and, therefore, there is no triable issue of fact as to whether the plaintiffs breached the contract. The case relied upon by the dissent, Oak Bee Corp. v Blankman & Co. (154 AD2d 3, 8), is distinguishable, because in that case there was evidence that the party charged with fulfilling the condition to the subject contract would not be able to perform by the law date. Bracken, J. P., Joy and Feuerstein, JJ., concur.