Jian Yun Guo v. Azzab
Supreme Court of the State of New York, Appellate Division, Second Department, June 13, 2018
Plaintiff (buyer) and defendant (seller) entered into a contract for sale of real property in Brooklyn. The contract stated that the closing would occur on Jan. 6, 2014, but time was not made of the essence. The parties did not close at the time provided in the contract and buyer commenced action for specific performance. The seller and her brother (Azzab defendants) interposed an answer which included counterclaims for breach of contract, and moved for summary judgment dismissing complaint against them and on their counterclaims. The seller supported their motion with a copy of a letter scheduling the closing, and an affidavit from seller’s brother stating neither buyer nor buyer’s attorney appeared at the closing. Buyer opposed the motion. The Supreme Court granted defendants’ motion and buyer appeals. This Court reverses the order. Buyer in opposition submitted affirmation from buyer’s attorney and affidavit from his paralegal stating that prior to the closing date, the seller’s attorney stated that the seller did not intend to proceed to closing, would not attend and wanted to cancel the contract. This provided sufficient evidence to raise a triable issue of fact.