1625 Mkt. Corp. v 49 Farm Mkt., Inc.

1625 Mkt. Corp. v 49 Farm Mkt., Inc. 2018 NY Slip Op 06498 Decided on October 2, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 2, 2018
Renwick, J.P., Gische, Kahn, Kern, Moulton, JJ.
7213 650016/14

[*1]1625 Market Corp., Plaintiff-Respondent,

v

49 Farm Market, Inc., Defendant-Appellant.

Matthew Jeon, P.C., New York (Matthew Jeon of counsel), for appellant.

Cole Schotz P.C., New York (Eric S. Latzer of counsel), for respondent.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered November 28, 2016, which, to the extent appealed from as limited by the briefs, denied defendant's motion pursuant to CPLR 5015(a)(1) to vacate an order entered on default, unanimously affirmed, without costs.

Defendant failed to demonstrate a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The record establishes that defendant elected not to perform under the parties' agreement in advance of the closing date, regardless of whether plaintiff would fulfill its contractual obligations prior to closing.

Defendant's anticipatory repudiation defense is unsupported by proof of a definite and final communication by plaintiff of its intention not to perform (see Jacobs Private Equity, LLC v 450 Park LLC, 22 AD3d 347 [1st Dept 2005], lv denied 6 NY3d 703 [2006]).

Defendant's argument, raised for the first time on appeal, that plaintiff's counsel violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 4.2(a) ("Communication with person represented by counsel") does not pose a pure question of law, and will not be considered (see Gonzalez v New York City Health & Hosps. Corp., 29 AD3d 369, 370 [1st Dept 2006]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 2, 2018

CLERK