Delisi v Mastros

[*1] Delisi v Mastros 2004 NY Slip Op 51524(U) Decided on August 25, 2004 Supreme Court, Queens County Satterfield, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 25, 2004
Supreme Court, Queens County

ANNA MARIE DELISI, Petitioner,

against

PAUL MASTROS, Respondent.



10851/04

Patricia P. Satterfield, J.

This is a special proceeding brought for the purpose of obtaining an "order" directing the specific performance of a contract for the sale of real property.

On or about December 28, 2003, petitioner Anna Marie DeLisi and Brenda DeLisi Flynn, as buyers, entered into a contract with respondent Paul Mastros, as seller, for the purchase of premises known as 433 Beach 120th Street, Rockaway, New York. The contract called for title to close on or about February 25, 2004. The petitioner alleges that she obtained a mortgage commitment in a timely manner from Cross County Federal Savings Bank on February 13, 2004. However, the bank made its mortgage commitment conditional, inter alia, on the amendment of the contract of sale naming the petitioner as the sole buyer. The respondent alleges that the contract of sale was never amended to comply with that condition. On April 2, 2004, the petitioner's attorney sent a letter demanding that the title closing occur on April 12, 2004, time being of the essence. However, on or about April 7, 2004, the respondent's attorney sent a letter alleging, inter alia, that the petitioner had breached the contract by not being ready to close on or about February 25, 2004 or March 26, 2004. On April 12, 2004, the petitioner and her attorney appeared at the office of Farber Rosen & Kaufman, the attorneys for Cross County Federal Savings Bank, allegedly prepared to consummate the sale. John Feijoo, Esq., representing the bank, alleges that "[a]ll requirements on the part of the Borrower, Anna Marie DeLisi, to close from my client's perspective had been satisfied."

The petitioner has improperly commenced a special proceeding by the service of an order to show cause and a petition rather than beginning an action by the service of a summons and a complaint. Specific performance is merely a remedy for breach of contract. "Specific performance is an equitable remedy***whereby the court, by its decree, compels a party to do precisely what he or she ought to have done without being coerced.***It is an equitable remedy for a breach of contract, rather than a separate cause of action;***that is, it is an alternative to the award of damages as a means of enforcing a contract." (96 NY Jur 2d, "Specific Performance," § 1.) Specific [*2]performance can be a proper remedy in actions for breach of contract for the sale of real property. (See, Judnick Realty Corp. v 32 W. 32nd Street Corp., 61 NY2d 819; Cho v 401-403 57th Street Realty Corp., 300 AD2d 174.) In order to obtain the remedy of specific performance, "the complaint must show: (1) the making of the contract and its terms, including a description of the subject matter; (2) that the plaintiff is ready, willing, and able to perform the contract and has fulfilled all of plaintiff's duties to date; (3) that it is within defendant's power to perform (as, in the case of specific performance of a real estate purchase agreement, a plaintiff should allege that defendant held title to the realty); and (4) that there is no adequate remedy at law (an element that need not be pled where the contract is for the sale of real property)." (96 NY Jur 2d, "Specific Performance," § 69.) (Emphasis added.)

CPLR 103(b) provides in relevant part: "All civil judicial proceedings shall be prosecuted in the form of an action, except when prosecution in the form of a special proceeding is authorized." (See, Haddad v Haddad, 272 AD2d 371; Greenberg v Ryder Truck Rental, Inc., 110 AD2d 585.) Petitioner DeLisi's cause of action is for breach of contract, and there is no authorization to commence a special proceeding asserting claims in that regard.

CPLR 103(c) provides in relevant part: "Improper form. If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution." (See, Kinzler v Kenny, 8 AD3d 627.) The instant special proceeding shall be converted into a plenary action. (See, Kinzler v Kenny, supra.) The court notes that it may not sua sponte treat the petition as a motion for summary judgment. (See, Kinzler v Kenny, supra.)

Accordingly, the petition is denied without prejudice. This special proceeding is converted into a plenary action. The petitioner is directed to serve a complaint within 20 days of the service of a copy of the order to be entered hereon with notice of entry.

Short form order signed herewith.

J.S.C.