Soto v Public Adm'r of Queens County

[*1] Soto v Public Adm'r of Queens County 2005 NY Slip Op 50252(U) Decided on March 2, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: March 2, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2004-242 Q C

Inocencio A. Soto, Appellant,

against

Public Administrator of Queens County, as ADMINISTRATOR of the ESTATE OF CRISTOBAL PEREZ a/k/a CRISTOBAL PEREZ, JR., DECEASED, Respondent, -and- JUSTIN LEVINE, Defendant.

Appeal by plaintiff from an order of the Civil Court, Queens County (K. Kerrigan, J.), entered on December 19, 2003, granting the motion by the Administrator of the Estate of Cristobal Perez for summary judgment dismissing the complaint as against it.

On the court's own motion, the Public Administrator of Queens County, as administrator of the Estate of Cristobal Perez, is substituted as a party defendant, and the caption amended accordingly (see Public Adm'r of Queens County v Rad Oil Co., 143 AD2d 408 [1988]).

Order unanimously affirmed without costs.

Plaintiff entered into a contract with the Public Administrator, as Administrator of the Estate of Cristobal Perez, to purchase real property located at 1877 Linden Street, Ridgewood, New York for the sum of $220,000, with a $22,000 down payment made by plaintiff at the time [*2]he executed the contract. Pursuant to the terms and conditions of the contract of sale, time was made of the essence and the sale was not made contingent upon plaintiff obtaining a mortgage. In addition, the contract provided that if the purchaser was unable to complete the purchase on or before the closing date, the down payment would be forfeited and the contract would be cancelled. Although the parties consented to two adjournments of the closing date, letters consenting to said adjournments expressly provided that as to each adjourned date, time was of the essence and said provision was not waived. Thus, the parties remained obligated to tender performance on the new law day (see Grace v Nappa, 46 NY2d 560, 565 [1979]). It appears from the record that plaintiff defaulted under the contract of sale since he was unable to pay the balance of the purchase price. Accordingly, plaintiff's complaint, seeking to recover his down payment, was properly dismissed.
Decision Date: March 02, 2005