Prana Partners v Brittbran Realty, Inc.

Prana Partners v Brittbran Realty, Inc. 2004 NY Slip Op 07973 [12 AD3d 198] November 9, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Prana Partners, Appellant,
v
Brittbran Realty, Inc., Respondent.

—[*1]

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 23, 2004, which, after a nonjury trial, dismissed plaintiff buyer's complaint seeking specific performance, canceled the parties' contract to transfer real estate, and declared that defendant seller is entitled to retain plaintiff's down payment, unanimously modified, on the law, to vacate the declaration that defendant is entitled to retain plaintiff's down payment, and substitute therefor a declaration that defendant must return the down payment, and otherwise affirmed, without costs.

The trial court correctly determined that the rider on which plaintiff relies to show a breach by defendant was not part of the parties' contract. However, plaintiff should not have been charged with an anticipatory breach of the contract where defendant seller acknowledged that it could not deliver title on the closing date (see Gargano v Rubin, 200 AD2d 554 [1994]). Under the circumstances, the contract should be deemed lapsed and the parties restored to their precontract positions. We have considered the parties' remaining contentions and find them unavailing. Concur—Tom, J.P., Andrias, Sullivan, Ellerin and Sweeny, JJ.