Practice point: To prevail on the cause of action, the plaintiff must establish
that the defendant breached or repudiated the contract and that the
plaintiff was ready, willing, and able to perform on the closing date. The rule is that, where the vendor's title is incurably defective, a vendee can recover the money paid on the contract
from a defaulting vendor, without a showing of tender or
even of willingness and ability to perform, but a tender and demand are required to put the vendor
in default where title could be cleared without difficulty
in a reasonable time. In that latter situation, the seller is entitled to a reasonable time to make the title good. When
the vendor is on notice of the defect prior to the scheduled closing
date and does nothing to correct it until after the closing date, the
purchaser need not tender performance, as such tender would be
meaningless.
Student note: Where a seller seeks to hold a purchaser in
breach of contract, the seller must establish that he or she was
ready, willing, and able to perform on the time-of-the-essence closing
date, and that the purchaser failed to demonstrate a lawful excuse for
its failure to close.
Case: Martocci v. Schneider, NY Slip Op 05308 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Denial of a motion to dismiss on a general release and waiver.
