Decatur (2004) Realty, LLC v Cruz
2006 NY Slip Op 04380 [30 AD3d 367]
Decided on June 6, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on June 6, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
THOMAS A. ADAMS
DANIEL F. LUCIANO
STEVEN W. FISHER, JJ.
2005-07328 DECISION & ORDER

[*1]Decatur (2004) Realty, LLC, et al., appellants,

v

Miriam Cruz, respondent. (Index No. 2182/05)





Thomas Torto, New York, N.Y. (Jason Levine of counsel), for
appellants.

In an action to compel specific performance of a contract to purchase real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated July 5, 2005, which denied their motion for summary judgment.

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the plaintiffs' contention, they failed to show that they properly demanded performance of a contract to purchase real property on a specific day (see Cave v Kollar, 296 AD2d 370). They also failed to show that they had the requisite ability to perform the contract (Paglia v Pisanello, 15 AD3d 373). Thus, the plaintiffs failed to make out their prima facie case showing their entitlement to summary judgment on their cause of action to compel specific performance and denial of their motion was proper (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

In light of this determination we need not reach the plaintiffs' remaining contentions.
FLORIO, J.P., ADAMS, LUCIANO and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court