Muttontown Realty Corp. v. Schwartz

Full title: MUTTONTOWN REALTY CORP., Appellant, v. RICHARD SCHWARTZ et al., Respondents

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 25, 1993

197 A.D.2d 680 (N.Y. App. Div. 1993)

604 N.Y.S.2d 776

Opinion

October 25, 1993

Appeal from the Supreme Court, Nassau County (Segal, J.).

Ordered that the order is affirmed, with costs.

The record raises triable issues of fact (see, CPLR 3212) as to whether the plaintiff waived timely performance on the part of the defendants (see, Ranfro Dev. Corp. v. Home Funding Co., 26 A.D.2d 955). Contrary to the plaintiff's contention, we also find that the defendants' actions on the day finally set for closing did not constitute an anticipatory breach of the parties' contract (see, Calamari Perillo, Contracts § 12-3, at 521 [3d ed]). Bracken, J.P., Balletta, Eiber, O'Brien and Santucci, JJ., concur.