Appellate Division of the Supreme Court of New York, 2004

Internet Homes, Inc. v. Vitulli

Appellate Division of the Supreme Court of New York · Decided June 14, 2004

8 A.D.3d 438; 778 N.Y.S.2d 534; 2004 N.Y. App. Div. LEXIS 8484

Cases that cite this one

23 later published cases cite this decision.

GLND 1945, LLC v. Ballard (Appellate Division of the Supreme Court of New York 2019)
Sparks Associates, LLC v. North Hills Holding Co. II, LLC (Appellate Division of the Supreme Court of New York 2010)
Singh v. Gopaul (Appellate Division of the Supreme Court of New York 2006)
Tsabari v. Haye (Appellate Division of the Supreme Court of New York 2004)
130 Third St. Loft, LLC v. HKF, Inc. (Appellate Division of the Supreme Court of New York 2018)
Brisk v. Bloch (Appellate Division of the Supreme Court of New York 2018)
MB Shtetl 1 Corp. v. Singh (Appellate Division of the Supreme Court of New York 2018)
Grunbaum v. Nicole Brittany, Ltd. (Appellate Division of the Supreme Court of New York 2017)
Petervary v. Bubnis (Appellate Division of the Supreme Court of New York 2012)
Petervary v. Bubnis (Appellate Division of the Supreme Court of New York 2012)
Zeitoune v. Cohen (Appellate Division of the Supreme Court of New York 2009)
Weiss v. Feldbrand (Appellate Division of the Supreme Court of New York 2008)
Djukanovic v. D'Amico (Appellate Division of the Supreme Court of New York 2007)
Sau Ting Cheng v. Prime Design Realty, Inc. (Appellate Division of the Supreme Court of New York 2007)
O'Connell v. Soszynski (Appellate Division of the Supreme Court of New York 2007)
Aliperti v. Laurel Links, Ltd. (Appellate Division of the Supreme Court of New York 2006)
McCabe v. Witteveen (Appellate Division of the Supreme Court of New York 2006)
Fridman v. Kucher (Appellate Division of the Supreme Court of New York 2006)
Madison Equities, LLC v. MZ Management Corp. (Appellate Division of the Supreme Court of New York 2005)
Lower v. Village of Watkins Glen (Appellate Division of the Supreme Court of New York 2005)
Realty Equities, Inc. v. Walbaum, Inc. (Appellate Division of the Supreme Court of New York 2005)
28 Properties, Inc. v. Akleh Realty Corp. (Appellate Division of the Supreme Court of New York 2005)
Belle Harbor Wash. Hotel, Inc. v. Jefferson Omega Corp. (New York Supreme Court, Queens County 2004)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

*439In an action for specific performance of a contract for the sale of real property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Dye, J.), dated January 27, 2003, as granted the motion of the defendant Joseph Vitulli as executor of the estate of Giacomina Vitulli, also known as Giacoma Vitulli, for summary judgment dismissing the complaint insofar as asserted against him, searched the record and granted summary judgment dismissing the complaint insofar as asserted against the defendant coexecutor Lucy Vitulli Antonacci, and denied that branch of its cross motion which was for summary judgment in its favor.

Ordered that the order is affirmed insofar as appealed from, with costs.

Before specific performance of a contract for the sale of real property may be granted, a buyer must demonstrate that it was ready, willing, and able to perform (see Nuzzi Family Ltd. Liab. Co. v Nature Conservancy, 304 AD2d 631, 632 [2003]). Here, even assuming that the defendants improperly cancelled the contract, the plaintiff still bore the burden to show that it had the financial capacity to purchase the property (see Johnson v Phelan, 281 AD2d 394, 395 [2001]; Madison Invs. v Cohoes Assoc., 176 AD2d 1021, 1022 [1991]; 3M Holding Corp. v Wagner, 166 AD2d 580, 581-582 [1990]). The plaintiffs unsubstantiated assertions that a line of credit could be secured or that a closely-related corporation would supply the funds and the conclusory allegation that it was ready, willing, and able to perform were insufficient to satisfy its burden (see Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997, 998 [1983]; Ferrone v Tupper, 304 AD2d 524, 525 [2003]; Goller Place Corp. v Cacase, 251 AD2d 287, 288 [1998]; Madison Invs. v Cohoes Assoc., supra; Zev v Merman, 134 AD2d 555, 557 [1987], affd 73 NY2d 781 [1988]).

Thus, the Supreme Court properly granted the motion of the defendant Joseph Vitulli for summary judgment dismissing the complaint insofar as asserted against him, and denied that branch of the plaintiffs cross motion which was for summary judgment, as it did not demonstrate that it was ready, willing, and able to close the sale.

Based on the absence of a valid cause of action, the Supreme Court properly searched the record and granted summary judgment dismissing the complaint ipsofar as asserted against the nonmoving defendant Lucy Vitulli Antonacci (see CPLR 3212 *440[b]; Fappiano v City of New York, 5 AD3d 627 [2004]; Green v Dolphy Constr. Co., 187 AD2d 635, 636 [1992]; cf. Dunham v Hilco Constr. Co., 89 NY2d 425, 429 [1996]).

The plaintiffs remaining contention is without merit. Florio, J.P., Schmidt, Crane and Rivera, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.