Scott Randolph, LLC v. Gholis of Brooklyn Corp.

Summary

The Appellate Division, Second Department, affirmed an order granting summary judgment against the plaintiff in an action involving specific performance of a commercial real estate contract. The court held that the seller demonstrated readiness and ability to close, while the plaintiff defaulted by failing to appear at the scheduled closing, entitling the seller to retain the down payment. The court also upheld dismissal of tortious-interference and fraud claims against additional defendants and remitted the matter for entry of declaratory judgment.

Holdings

1. A party seeking specific performance must establish both that it was ready, willing, and able to close on the scheduled closing date and that the opposing party was in default. The plaintiff failed to make that prima facie showing, and Gholis was entitled to summary judgment dismissing the specific-performance claim.
2. A seller seeking to establish the purchaser's breach and retain a down payment must show that the seller was ready, willing, and able to perform on the time-of-the-essence closing date and that the purchaser lacked a lawful excuse for failing to close. Gholis satisfied that burden and was entitled to retain the down payment.
3. Bushwack and Stellberger were entitled to summary judgment dismissing the plaintiff's tortious-interference and fraud claims because the plaintiff failed to raise a triable issue of fact.

Questions Presented

1. Whether the plaintiff established that it was ready, willing, and able to close and that Gholis was in default, thereby warranting specific performance.
2. Whether Gholis established that it was ready, willing, and able to perform, that the plaintiff defaulted by failing to appear at the scheduled closing, and that Gholis was entitled to retain the down payment.
3. Whether Bushwack and Stellberger were entitled to summary judgment dismissing the plaintiff's tortious-interference and fraud claims.
4. Whether the matter should be remitted for entry of a declaratory judgment concerning the plaintiff's rights in the premises and Gholis's entitlement to retain the down payment.

Disposition

affirmed