[*2]Appeal by plaintiffs from an order of the Civil Court, Richmond County (E. Vitaliano, J.), entered September 6, 2002, which denied their motion to vacate a judgment entered on default and granted defendant's motion for sanctions by imposing a $1,000 sanction upon plaintiffs' attorney.

Appeal by plaintiffs from so much of the order as granted defendant's motion to impose sanctions on plaintiffs' attorney unanimously dismissed, as plaintiffs are not aggrieved by that part of the order (see CPLR 5511; Scopelliti v Town of New Castle, 92 NY2d 944; Warm v State of New York, 265 AD2d 546).

Order insofar as it denied plaintiff's motion to vacate a judgment entered on default unanimously affirmed with $10 costs.

In this action seeking damages arising out of defendant's failure to close title on the date specified in the contract, plaintiffs premised their entitlement to recover on the clause in the contract which provided for a closing to be held "on March 15, 2002 ... ". Where, as here, a contract of sale does not contain a specific declaration that time is of the essence, the law permits the parties a reasonable time in which to tender performance, regardless of whether the contract designates a specific date on which such performance is to be tendered (see Grace v Nappa, 46 NY2d 560; Savitsky v Sukenik, 240 AD2d 557; Sohayegh v Oberlander, 155 AD2d 436; 4200 Ave. K Realty Corp. v 4200 Realty Co., 123 AD2d 419, appeal dismissed 69 NY2d 944). Where time is not made of the essence in the original contract, one party may subsequently make time of the essence by providing clear, distinct and unequivocal notice to that effect giving the other reasonable [*3]time to act. The notice should specify a time on which to close and warn that the failure to close on that date will result in default (see Zev v Merman, 134 AD2d 555, 557, affd 73 NY2d 781). Inasmuch as the instant contract did not make a specific declaration that time was of the essence and since there is nothing in the record to establish that plaintiffs subsequently gave the requisite notice making time of the essence, plaintiffs' action was properly dismissed.
Decision Date: October 02, 2003