Practice point: A purchaser seeking specific performance of a real estate contract must
demonstrate that he or she was ready, willing, and able to perform on
the contract, regardless of any anticipatory breach by the selle. An anticipatory breach of the contract excuses the purchaser from
tendering performance, but does not excuse the purchaser from the
requirement of being ready, willing, and able to perform.
In order to retain the down payment, the seller must have been ready, willing, and able to perform on the law day. There are exceptions to this rule, such as where the purchaser seeks to
cancel the contract without giving the seller an opportunity to cure
any defects. In order to get a return of
the down payment, the purchaser is not required to tender performance
and attend a closing if the seller is unable to perform on the law day.
Case: 33 Park Ave. Realty, LLC v. Park Ave. Bldg. & Roofing Supplies, LLC, NY Slip Op 08802 (2d Dep't December 20, 2017)
Here is the decision.
