Muttontown Realty Corp. v. Schwartz

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Segal, J.), dated August 20, 1991 which denied its motion for summary judgment.

Ordered that the order is affirmed, with costs.

The record raises triable issues of fact (see, CPLR 3212) as to whether the plaintiff waived timely performance on the part of the defendants (see, Ranfro Dev. Corp. v Home Funding Co., 26 AD2d 955). Contrary to the plaintiff’s contention, we also find that the defendants’ actions on the day finally set for closing did not constitute an anticipatory breach of the parties’ contract (see, Calamari & Perillo, Contracts § 12-3, at 521 [3d ed]). Bracken, J. P., Balletta, Fiber, O’Brien and Santucci, JJ., concur.