Rosenberg Calica & Birney LLP, Garden City, NY (Ronald J.
Rosenberg and Lesley A. Reardon of counsel), for appellant.
A. Hummel, Woodbury, NY, for respondents.
E. CHAMBERS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, BETSY
DECISION & ORDER
action, inter alia, for specific performance of a contract
for the sale of real property, the plaintiff appeals from (1)
an order of the Supreme Court, Suffolk County (Gazzillo, J.),
dated July 30, 2015, which denied its motion for summary
judgment on the amended complaint and granted the
defendants' cross motion for summary judgment dismissing
the amended complaint, and (2) a judgment of the same court
entered October 2, 2015, which, upon the order, is in favor
of the defendants and against it, in effect, dismissing the
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is affirmed; and it is
further, ORDERED that one bill of costs is awarded to the
appeal from the order must be dismissed because the right of
direct appeal therefrom terminated upon the entry of the
judgment in the action (see Matter of Aho, 39 N.Y.2d
241, 248). The issues raised on the appeal from that order
are brought up for review and have been considered on the
appeal from the judgment (see CPLR 5501[a]).
March 2004, the plaintiff entered into a contract to purchase
a parcel of real property from the estate of Mary Adamowicz,
deceased, and Michael Adamowicz (hereinafter together the
seller), as tenants in common. The contract permitted the
seller to return the plaintiff's down payment and cancel
the contract in the event "the reasonably estimated
aggregate cost to remove or comply with any violations or
liens which Seller is required to remove or comply with...
shall exceed the Maximum Amount specified in Schedule D [$23,
500]." The estate's 50% ownership interest in the
parcel was subject to a lien imposed by the Internal Revenue
Service (hereinafter the IRS) for estate taxes in the initial
amount of approximately $6, 000, 000. The title company
listed the lien as an exception to coverage, which the
plaintiff demanded the seller remove. After the estate failed
to obtain a release of the lien, on August 12, 2004, the
seller advised the plaintiff that it could not deliver
insurable title and, therefore, it was canceling the contract
and returning the plaintiff's down payment.
November 2004, the plaintiff commenced this action against
Elizabeth Fraser, as Executor of the Estate of Mary
Adamowicz, and Michael Adamowicz, inter alia, for specific
performance of the contract. The caption was subsequently
amended to substitute Deborah Adamowicz, as Preliminary
Executor of the Estate of Michael Adamowicz, as a defendant.
In the order appealed from, the Supreme Court denied the
plaintiff's motion for summary judgment on the amended
complaint, and granted the defendants' cross motion for
summary judgment dismissing the amended complaint.
Thereafter, the court entered a judgment in favor of the
defendants and against the plaintiff, in effect, dismissing
as here, a contract for the sale of real property provides
that in the event the seller is unable to convey title in
accordance with the terms of the contract, the seller may
refund the buyer's down payment and cancel the contract
without incurring further liability, that "limitation
contemplates the existence of a situation beyond the
parties' control and implicitly requires the seller to
act in good faith" (Karl v Kessler, 47 A.D.3d
681, 682; see Naso v Haque, 289 A.D.2d 309, 309-310;
Mokar Props. Corp. v Hall, 6 A.D.2d 536, 539). Here,
in support of their cross motion, the defendants established
their prima facie entitlement to judgment as a matter of law
by demonstrating that they validly cancelled the contract
pursuant to its terms after making good faith efforts to
resolve the lien (see Gold v First Stop Tire Shop,
Inc., 50 A.D.3d 738, 738; Karl v Kessler, 47
A.D.3d at 682; Eckel v Francis, 5 A.D.3d 719,
721-722; cf. 9 Bros. Bldg. Supply Corp. v
Buonamicia, 299 A.D.2d 529, 530). Thus, the defendants
demonstrated, prima facie, that the plaintiff was not
entitled to specific performance (see Gold v First Stop
Tire Shop, Inc., 50 A.D.3d at 738; Finkelman v
Wood, 203 A.D.2d 236, 237). In opposition, the plaintiff
failed to raise a triable issue of fact (see 101123 LLC v
Solis Realty LLC, 23 A.D.3d 107, 111-113; cf. S.E.S.
Importers, Inc. v Pappalardo, 53 N.Y.2d 455).
plaintiff's remaining contentions are without merit.
the Supreme Court properly denied the plaintiff's motion
for summary judgment on the amended complaint, and, for the
same reason, properly granted the defendants' cross