Category Archives: Real Estate

THE THREE MUSKETEERS: READY, WILLING AND ABLE

Actions for specific performance of contracts for the purchase and sale of real property abound.  The plaintiffs allege that they are ready, willing and able to perform.  And the defendants either refuse to close or assert that their performance is excused by the failure of a condition precedent.  Several recent examples follow.

Chun Peter Dong v. First Korean Church of N.Y., 2017 NY Slip Op 05063 (App. Div. 2nd Dept. June 21, 2017)

Supreme Court granted defendant’s motion for summary judgment dismissing the complaint for specific performance of a contract to sell real property and declared that the contract was not binding and enforceable.

The Appellate Division summarized the facts:

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Yellowstone Update

Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Associates, 93 N.Y.2d 508, 693 N.Y.S.2d 91, 715 N.E.2d 117 (1999)  (“The party requesting a Yellowstone injunction must demonstrate that: ‘(1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises[.]’”)

Prince Fashions, Inc. v. 60G 542 Broadway Owner, LLC, 2017 NY Slip Op 02918 (App. Div. 1st Dept. April 18, 2017)

The Appellate Division addressed an Order of Supreme Court that denied plaintiff’s motion for a Yellowstone injunction stating that:

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Love Thy Neighbor As Thyself?

Owners of real estate often need access to neighboring properties to make improvements or repairs.  Access is sometimes neighborly and collegial; however, circumstances are often adversarial and lead to litigation.

In this regard, Section 881 of the Real Property Actions and Proceedings Law provides that:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

Needless to say, each and every element of Section 881 has been, and continues to be, a source of litigation.

DDG Warren LLC v. Assouline Ritz 1, LLC, 2016 NY Slip Op 02926 (App. Div. 1st Dept. April 19, 2016) Continue reading