Opinion
January 5, 1995
Appeal from the Supreme Court, St. Lawrence County (Nicandri, J.).
Plaintiffs commenced this action in September 1990 seeking to compel specific performance of the parties' contract for the sale of a 3.36-acre parcel of land (hereinafter the land) owned by defendants. The contract was executed on or about October 21, 1988 and was made contingent upon plaintiffs securing all government approvals, permits and licenses required for construction and operation of a college fraternity residence on the land. The contract provided that the closing was to be held on or about March 31, 1989 with an option to extend the closing date up to June 30, 1989 if plaintiffs ran into difficulty in obtaining the required zoning approval by giving one or more written notices to defendants. Plaintiffs made a partial payment of $1,000 toward the purchase price for the land. Plaintiffs extended the closing date to on or before June 30, 1989 but the closing never took place. In a letter dated July 12, 1990 plaintiffs requested performance of the contract by defendants and offered to set a closing date at defendants' convenience; however, no date was ever set.
It was after plaintiffs became aware that defendants were seeking to sell the land at a price higher than the contract price that they initiated the instant action. Thereafter, defendants moved, inter alia, for summary judgment dismissing the complaint claiming that plaintiffs were not cooperative in answering defendants' discovery-related requests. In turn, plaintiffs cross-moved for summary judgment.
Supreme Court found that plaintiffs had acted in good faith in attempting to close the sale and in responding to discovery requests and denied defendants' motion for summary judgment. Supreme Court determined, inter alia, that plaintiffs had tendered full performance of their contract obligations and granted plaintiffs' cross motion for summary judgment. Defendants appeal from the order and judgment entered thereon.
Defendants' contention that Supreme Court erred in granting summary judgment in favor of plaintiffs because plaintiffs did not demonstrate that they were ready, willing and able to perform their contract obligations is meritorious. Before specific performance of a contract may be granted, a plaintiff "must demonstrate that he/she was ready, willing and able to perform on the original law day or, if the time is not of the essence, on a subsequent date fixed by the parties" or within a reasonable time thereafter (Morey v. Sings, 174 A.D.2d 870, 873; see, Contro v White, 176 A.D.2d 1052, 1053). The record reveals that plaintiffs submitted no documentation or other proof to substantiate their assertion that they had the funds necessary to purchase the property and, thus, are unable to prove they were ready, willing and able to close the sale as a matter of law (see, Huntington Min. Holdings v. Cottontail Plaza, 60 N.Y.2d 997, 998; Contro v White, supra; Madison Invs. v. Cohoes Assocs., 176 A.D.2d 1021, 1022, lv dismissed 79 N.Y.2d 1040). Supreme Court therefore improperly granted plaintiffs' cross motion for summary judgment (compare, Cohn v. Mezzacappa Bros., 155 A.D.2d 506, lv denied 75 N.Y.2d 707).
Defendants properly claim that material issues of fact are presented concerning plaintiffs' alleged tender of performance and abandonment of the contract. Defendants have averred that plaintiffs never tendered the purchase price or otherwise tendered performance of their obligations under the contract. Defendants also aver that they never received the letter from plaintiffs (dated June 21, 1989) which plaintiffs claim informed defendants of plaintiffs' willingness to set a closing date at defendants' convenience. Further, defendants assert that plaintiffs' admissions as to whether financing was available to them to purchase the property are ambiguous. This evidence demonstrates that questions of fact exist as to whether plaintiffs tendered full performance under the contract (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Contro v. White, supra). Triable issues of fact also are raised as to whether plaintiffs abandoned the contract (see, Green v. Doniger, 300 N.Y. 238, 245; Carver v. Apple Rubber Prods. Corp., 163 A.D.2d 849, 850).
Defendants' contention as to the inadequacy of plaintiffs' responses to their demand for bills of particular are not stated with sufficient particularity as to the additional factual evidence they seek to discover (see, Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 163; Pitter Co. v. Segal, 173 A.D.2d 159, 160). Supreme Court therefore did not err in denying defendants' motion for additional discovery.
Defendants' argument that Supreme Court erred in dismissing their defense of laches for insufficiency as a matter of law is without merit (see, 75 N.Y. Jur 2d, Limitations and Laches, § 333). Defendants have not shown prejudice, nor reliance and a change of position resulting from plaintiffs' delay (see, Airco Alloys Div. v. Niagara Mohawk Power Corp., 76 A.D.2d 68, 82; Mazzara v. Town of Pittsford, 34 A.D.2d 90, 93). Accordingly, Supreme Court correctly dismissed the defense of laches.
Cardona, P.J., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order and judgment are modified, on the law, with costs to defendants, by reversing so much thereof as granted plaintiffs' cross motion for summary judgment; cross motion denied; and, as so modified, affirmed.