Opinion
June 9, 1995
Appeal from the Supreme Court, Onondaga County, Nicholson, J.
Present — Pine, J.P., Lawton, Callahan, Davis and Boehm, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of plaintiffs for summary judgment seeking specific performance of their real estate contract with defendants. Plaintiffs established their entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form that they validly declared that time was of the essence, scheduled a closing date of September 14, 1994, and were ready, willing and able to close on that date, and that the failure of defendants to appear on that date placed them in default (see, Mazzaferro v. Kings Park Butcher Shop, 121 A.D.2d 434, 436-437; Huntington Min. Holdings v Cottontail Plaza, 96 A.D.2d 526, affd 60 N.Y.2d 997; cf., Karamatzanis v. Cohen, 181 A.D.2d 618, lv denied 80 N.Y.2d 754; see generally, Grace v. Nappa, 46 N.Y.2d 560, 565; 76 N. Assocs. v. Theil Mgt. Corp., 132 A.D.2d 695, 696, lv denied 70 N.Y.2d 612). Defendants failed to raise a triable issue of fact in response to that showing. There is no merit to the contention that defendants had validly rescinded the contract as a result of plaintiffs' failure to comply with defendants' earlier declaration making time of the essence, and thus that there was no contract at the time of plaintiffs' declaration. Even assuming, arguendo, that their earlier declaration was valid, defendants failed to assert that they were ready, willing and able to proceed on August 19th (cf., Mazzaferro v. Kings Park Butcher Shop, supra).