Opinion
2002-10383.
Decided March 22, 2004.
In an action for specific performance of a contract for the sale of real property, the defendant appeals from an amended judgment of the Supreme Court, Kings County (G. Aronin, J.), dated September 18, 2002, which, after a nonjury trial, and upon a decision of the same court dated July 31, 2002, is in favor of the plaintiffs and against it.
Spanakos Spanakos, Brooklyn, N.Y. (John D'Emic of counsel), for appellant.
Wachtel Masyr, LLP, New York, N.Y. (Jeffrey T. Strauss and Ami Wellman of counsel), for respondents.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the amended judgment is affirmed, with costs.
The plaintiff purchasers commenced this action to compel the specific performance of a contract for the sale of real property. The defendant seller asserted that it properly cancelled the contract because the plaintiffs failed to secure a mortgage commitment within the time period set forth in the contract. However, the contract did not provide the defendant with the option of cancelling the contract if the plaintiffs failed to do so ( see e.g. Dann v. King Assoc., 303 A.D.2d 539; Schatten v. Briedis, 163 A.D.2d 379; see also Xhelili v. Larstanna, 150 A.D.2d 560). Thus, as the defendant did not make time of the essence as to a closing date prior to its purported cancellation of the contract, such cancellation constituted a breach of the contract ( see Bardel v. Tsoukas, 303 A.D.2d 344; Kevan v. Modesta, 292 A.D.2d 348; Schatten v. Briedis, supra). Accordingly, since the plaintiffs demonstrated that they were ready, willing, and able to proceed to closing at the time the defendant purportedly cancelled the contract, they were correctly awarded specific performance of the contract ( see Kevan v. Modesta, supra; Zev v. Merman, 134 A.D.2d 555, affd 73 N.Y.2d 781).
The defendant's contention that it is entitled to additional compensation is not properly before this court because it is being raised for the first time on appeal ( see Sandoval v. Juodzevich, 293 A.D.2d 595, 595-596; Mourounas v. Shahin, 291 A.D.2d 537). Nor does the issue fall within the exception to the preservation requirement permitting review of a question of law "which could not have been avoided if raised at the proper juncture" ( Deltoro v. Arya, 305 A.D.2d 628, 629).
RITTER, J.P., GOLDSTEIN, TOWNES and CRANE, JJ., concur.