Plaintiffs move by order to show cause for a an order compelling the defendant to transfer to them the common stock and appurtenant proprietary lease for the apartment unit in which they reside. Plaintiffs also seeks a preliminary injunction enjoining the defendant from canceling the contract of sale for this unit or from taking any action with respect to the common stock and appurtenant proprietary lease adverse to the plaintiffs' claim of entitlement to same.

Plaintiff commenced this action on July 20, 2004, by filing a summons and complaint with the Kings County Clerk's office. The complaint alleges three causes of action, namely, breach of contract, an action for injunctive relief, and an action for specific performance of the contract of sale. On October 4, 2004, defendant filed their answer with the Kings County Clerk's office.

In compliance with a request of this court, each side submitted proposed findings of fact on the instant motion. The following facts are undisputed. 616 East 18th Street Owners Corporation is a cooperative development. Defendant, Tenshore Realty, Ltd., is the sponsor of the cooperative and the holder of 602 unsold shares of stock allocated to apartment 1C within the development. Plaintiffs are tenants of the cooperative and residents of apartment 1C located at 616 East 616 18th Street, Brooklyn, New York. Loubelle R. Smith is Verna L. Smith's mother. They have resided together in this unit for the last ten years pursuant to Verna L. Smith's sublease with the defendant.

By contract of sale dated May 14, 2004, the parties entered into a written agreement whereby plaintiffs agreed to purchase from defendant the shares of stock allocated to apartment 1C and to assume the proprietary lease appurtenant thereto. On May 17, 2004, the defendant provided the plaintiffs with a fully executed duplicate original of the contract of sale. The contract set a purchase price in the amount of one hundred and twenty six thousand four hundred and twenty dollars ($126,420.00). The plaintiffs paid the defendant a down payment of twenty five thousand two hundred and eighty four dollars ($25, 284.00). According to provision 1.16 of [*2]the contract of sale, the agreement was subject to plaintiffs obtaining financing for the balance of the purchase price within twenty (20) business days after a fully executed counterpart of the contract was provided to them. Provisions 19.1 of the contract set forth the right of the purchaser to cancel the contract and recover the contract deposit under qualifying conditions set forth in section 19.1.1 or 19.1.3. Provision 19.4 further provides that to invoke this cancellation right under either section 19.1.1 or 19.1.3, purchaser was required to give notice of cancellation to the seller within seven (7) days after the right to cancel arises. The qualifying condition set forth in 19.1.1 was the purchaser's inability to obtain a loan commitment, through no fault of the purchaser, within the time period specified under 1.16.

The contract of sale included a rider. By agreement of the parties, the provisions of the rider would govern in the event of an inconsistency between its terms and the provisions of the contract. Paragraph forty (40) of the rider set forth the following language:

The delivery of the contract upon the purchaser or purchaser's attorney shall not be deemed an offer by seller, nor shall this contract be deemed a binding obligation on seller, unless and until (i) seller receives at least three (3) copies hereof duly by purchaser together with the check in payment of the contract deposit, (ii) seller shall have counter-executed such copies and delivered a fully executed copy hereof to the purchaser or purchaser's attorney; and (iii) purchaser's check shall have cleared collection.

Plaintiffs applied for a mortgage loan with North Fork Bank and as of June 11, 2004, had not yet received a decision. On June 14, 2004, plaintiff's attorney sent a letter to the defendant by facsimile transmission seeking an extension of the time to obtain a mortgage commitment to July 12, 2004. It advised of the pending application with North Fork Bank and contained the following pertinent language relied upon by the defendant.

"In the event this request is not granted, the contract shall be deemed null and void and neither party shall have any further liability to the other."

Defendant's attorney sent plaintiffs a letter by facsimile transmission on June 14, 2004, which denied the request for an extension of the mortgage commitment date, accepted plaintiffs' offer to cancel the contract of sale and returned plaintiffs' security deposit. On June 14, 2004, plaintiffs notified the defendant that they had received oral notification from North Fork Bank that their mortgage loan application had been approved. On June 17, 2004, North Fork Bank provided the defendant by facsimile transmission a copy of their mortgage commitment with the plaintiffs. Thereafter, defendant considered the contract cancelled and refused all attempts by plaintiff to proceed with the contract.

Plaintiff seeks an accelerated judgment compelling the defendant to transfer to the plaintiffs the common stock and appurtenant proprietary lease for apartment 1C. Plaintiffs also seeks a preliminary injunction enjoining defendant from canceling the contract of sale for this unit or from taking any action with respect to the common stock and appurtenant proprietary lease adverse to the plaintiff's claim of entitlement to same. In essence, plaintiff's seek an accelerated judgment ordering specific performance of the contract of sale on the basis that they did not breach the provisions of the contract and did not seek to cancel the contract of sale. Plaintiffs also contend that they are ready, willing and able to go forward with the contract of sale [*3]but have been rebuffed by the defendant's insistence that the contract of sale is cancelled.

Indeed, defendant is not claiming that plaintiffs breached the contract of sale. Rather, defendant contends that plaintiffs' letter of June 14, 2004 operated as a contingent cancellation of the contract of sale. The contingency being the defendant's denial of the plaintiffs' request for an extension to obtain a mortgage loan commitment. Defendant further contends that their denial of the extension request gave them authority to accept the plaintiff's offer to cancel the contract of sale.

The elements of a cause of action for specific performance of a contract are that the plaintiff substantially performed its contractual obligations and was willing and able to perform its remaining obligations, that defendant was able to convey the property, and that there was no adequate remedy at law (EMF General Contracting Corp. v. Bisbee, 6 AD3d 45-51 [1st Dept. 2004]). Here the undisputed evidence establishes that plaintiff signed the contract of sale, gave defendant the agreed upon down payment in the amount of twenty five thousand two hundred and eighty four dollars ($25, 284.00) and applied for a mortgage loan for the balance with North Fork Bank. It is also undisputed that as of June 11, 2004, plaintiffs had not yet received a decision from the bank. On June 14, 2004, plaintiff's attorney sent a letter to the defendant by facsimile transmission seeking an extension of the time to obtain a mortgage commitment to July 12, 2004. Defendant denied the extension request. On June 14, 2004, plaintiffs orally informed the defendant that North Fork Bank had approved the mortgage loan and that they were able to go forward with the closing. Defendant returned the down payment and advised plaintiff that they accepted plaintiff's offer to cancel the contract.

It is well cited that a contract should be enforced according to its terms (Vermont Teddy Bear Co., Inc., v. 538 Madison Realty Co., 1 NY3d 470 [2004]). When the language in a contract is "clear and unambiguous", a court must look to the contract itself and not turn to extrinsic evidence (Van Buren v. Van Buren, 252 AD2d 950 [4th Dept. 1998]). According to provision 1.16 of the contract of sale, the agreement was subject to plaintiffs obtaining financing for the balance of the purchase price within twenty (20) business days after a fully executed counterpart of the contract was provided to them. Since this was done on May 17, 2004, plaintiff had until July 14, 2004 to obtain financing for the balance of the purchase price. The undisputed evidence establishes that plaintiffs were informed by North Fork Bank on July 14, 2004 that it had approved their mortgage loan application. It is also undisputed that on July 14, 2004, plaintiffs orally advised the defendant of the approval of their mortgage loan for the balance of the purchase price.

The issue squarely presented is whether the plaintiffs' letter of June 14, 2004, seeking an extension of the time to obtain a mortgage commitment constituted a conditional notice of cancellation to the defendant. While the letter did recite "In the event this request is not granted, the contract shall be deemed null and void and neither party shall have any further liability to the other", this letter can not properly be construed as such. There is no dispute that plaintiffs had twenty days from May 17, 2004 to obtain a mortgage commitment. The contract did not include language that time is of the essence. Nevertheless, even under the most restrictive reading of the contract, plaintiffs had until the end of the day on June 14, 2004 to obtain the loan agreement. Plaintiffs' letter of June 14, 2004 served three purposes. It informed the defendant that the loan application was still pending. It requested an extension of the deadline to procure the loan in [*4]anticipation of the potential passage of the deadline before receiving the bank's response. Finally, it reminded the defendant that plaintiffs failure to obtain the commitment before expiration of the deadline, in the absence of defendant's consent to extend the deadline, would give plaintiffs the right to cancel the contract without loss of their deposit.

Inasmuch as the plaintiffs did not breach the contract, defendant's determination to treat this letter as a conditional cancellation of the contract is not supported by any provision of the contract of sale. It is also not supported by the plain language of the letter or by the surrounding circumstances and conduct of the parties on July 14, 2004. The court finds that the undisputed facts establish that the defendant did not seek to cancel the contract by this letter.

Plaintiffs contend that they are ready, willing and able to proceed with the sale. Defendant has not demonstrated an inability to go forward with the contract. It is apparent to the court, that the appurtenant proprietary lease to the unit in question is unique in that it has served as plaintiffs' home for the last ten years. The court sees no adequate remedy short of specific performance to remedy defendant's breach of the agreement. Plaintiffs have, therefore, demonstrated their entitlement as a matter of law to specific performance of the contract of sale.

The burden therefore shifts to the defendant to show that a triable issue of fact exists to defeat plaintiffs' request for an accelerated judgment (Zuckerman v. City of New York, 49 NY 557 [1980]). The defendant has failed to meet this burden. Plaintiff's request for specific performance of the contract of sale is granted.

Plaintiffs also seek a preliminary injunction preventing the defendant from taking any action adverse to the plaintiffs' interest in the cooperative shares and appurtenant lease in question while the action is pending. In order to prevail in a proceeding for a preliminary injunction, the movant must establish the likelihood of success on the merits, irreparable injury absent a preliminary injunction and a balancing of equities in the movant's favor (South Amherst Ltd., v. H.B. Singer, LLC, 13 AD3d 515-517, [2nd Dept. 2004]). The facts which support the decision to grant plaintiffs' request for specific performance of the contract sale also satisfy every element of entitlement for the granting of a preliminary injunction. Defendant is enjoined from taking any action adverse to plaintiffs' interest in the 602 unsold shares of stock allocated to apartment 1C located at 616 East 616 18th Street, Brooklyn, New York or to the appurtenant proprietary lease for this unit pending the closing of the contract of sale. The parties are further directed to proceed to a closing within sixty days of the entry of this order.

The foregoing constitutes the decision and order of the court.

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J.S.C.