Sansol Industries, Inc. v. 345 East 56th Street Owners, Inc.

Judgment, [371] Supreme Court, New York County (Charles Ramos, J.), entered May 13, 1999, which, upon the prior grant of defendant’s motion for summary judgment and denial of plaintiffs cross motion for summary judgment, dismissed the complaint, unanimously affirmed, with costs. The summary judgment dismissal of the complaint was proper since defendant, in this action for specific performance of an agreement to purchase shares in defendant cooperative allocated to certain occupied apartments, made out a prima facie case of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324) and plaintiff, in opposition to the motion, failed to present evidence in admissible form sufficient to raise a triable issue of fact that it had tendered performance of its obligations under the contract or was ready, willing and able to do so (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sunrise Assocs. v Pilot Realty, 170 AD2d 214). In particular, plaintiff failed to present evidence that it was prepared to provide acceptable security as per the bid terms. Because plaintiff was neither a debtor nor a secured party, it lacked standing to object to the commercial reasonableness of the sale (see, Hong Kong & Shanghai Banking Corp. v HFH USA Corp., 805 F Supp 133, 146). Plaintiffs reliance upon the policy against successive summary judgment motions is misplaced here where previously extant factual issues had been obviated through intervening discovery (see, Freeze Right Refrig. & Air Conditioning Serv. v City of New York, 101 AD2d 175, 181). Finally, although plaintiff maintains that the motion court improperly amended the original order determining defendant’s motion and plaintiffs cross motion, issuance of the revised order was entirely appropriate since the record offers irrefutable support for the correction made by the court therein (see, Ungar v Ensign Bank, 196 AD2d 204, 208). Concur — Tom, J. P., Mazzarelli, Lerner, Rubin and Friedman, JJ.