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SUMMARY JUDGMENT ON SPECIFIC PERFORMANCE CAUSE OF ACTION PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined plaintiff's motion for summary judgment on the specific performance cause of action was properly denied:

In order to make time of the essence, where the contract does not provide for same, “there must be a clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time in which to act” … . Despite arguments that the plaintiffs raise to the contrary, there is no specific time period that is per se adequate, since “[w]hat constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case,” and “[t]he determination of reasonableness must by its very nature be determined on a case-by-case basis” … . “Included within a court's determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance” … .

Under the circumstances presented here, the plaintiffs failed to establish, prima facie, that the time-of-the-essence letter provided the defendants with a reasonable time within which to close … . Furthermore, by submitting certain email exchanges between the parties' attorneys concerning the scheduling of the closing, the plaintiffs failed to eliminate triable issues of fact as to whether the defendants objected to the plaintiffs' attempt to declare a law date … .  Kok Chai Lee v Robertson, 2018 NY Slip Op 06520, Second Dept 10-3-18

REAL ESTATE (SPECIFIC PERFORMANCE, SUMMARY JUDGMENT ON SPECIFIC PERFORMANCE CAUSE OF ACTION PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))/SPECIFIC PERFORMANCE (SPECIFIC PERFORMANCE, SUMMARY JUDGMENT ON SPECIFIC PERFORMANCE CAUSE OF ACTION PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))/TIME OF THE ESSENCE  (SPECIFIC PERFORMANCE, SUMMARY JUDGMENT ON SPECIFIC PERFORMANCE CAUSE OF ACTION PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))

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