Upon the foregoing papers, both the motion and cross motion for summary judgment are denied.

Plaintiff David Berman moves by notice of motion for an order granting him summary judgment and directing defendants to specifically perform the terms of a certain Contract of Sale dated May 31, 2005. Defendants oppose such application, and cross-move for an order granting them summary judgment under the terms of the same contract.

As is relevant, on May 31, 2005, plaintiff, as purchaser, and defendants, as sellers, entered into a contract of sale for the real property known as 2265 Richmond Terrace, Staten Island, New York.The purchase price was $3,000,000. A down-payment of $250,000 was made to the sellers' attorney, of which $54,000.00 was released back to the purchaser. As part of the terms of sale, defendant-sellers agreed to resolve, at their own expense, the numerous environmental issues outlined in a document known as the "Whitman Report" prior to the closing of title. In addition, it was agreed that plaintiff could fund any environmental clean-up of the property to the extent of $500,000.00, and take a credit for same against the purchase price. The contract of sale contained a "due diligence" period of 180 days. Plaintiff alleges that 90 days after the expiration of the "due diligence" period, i.e., on February 22, 2006, he was desirous of proceeding to close title, but defendants were not ready, willing and able due to their failure to "clear" certain of the items outlined in the Whitman report, as well as their inability to cure the multiple objections set forth in the title report. Thereafter, on May 17, 2006, plaintiff wrote to defendants fixing June 8, 2006 as the date of the closing, and making time of the essence. Although this date proved unacceptable to defendants, it was mutually agreed to adjourn the closing to June 22, 2006. Plaintiff maintains that defendant-sellers still refused to close in accordance with the terms of the contract, whereupon he commenced this action, inter alia, for specific performance. In support, plaintiff alleges that he has performed all of his obligations under the contract of sale, and there is no adequate remedy at law. [*2]

In opposition, and in support of their cross motion, defendants contend that they were prepared to close title on June 22, 2006, but that plaintiff failed to appear. It is further claimed (but, as yet, un-demonstrated) that there are myriad reasons to believe that plaintiff's purported willingness to close title was merely a sham. For example, it is undisputed that plaintiff ordered the title report only two days prior to the initial closing date of June 8, 2006, and that said report was not received by defendants until June 21, 2006. When plaintiff failed to appear on June 22, 2006, defendants took the position that plaintiff was in default, and so advised him by letters dated June 22, 2006 and June 28, 2006. Defendants also claim that plaintiff made no attempt to cure his default prior to the commencement of this action. As additional support for their claim that plaintiff's avowed "readiness" to close was disingenuous, defendants allege that while part of the down-payment was released to the sellers, the balance remains in a special escrow account for the benefit of plaintiff's father, Murray Berman. Since the latter also failed to appear at the closing, defendants point out that the resultant inability to authorize the release of these funds prohibited plaintiff from closing title. With regard to the alleged unresolved environmental issues, defendants contend that the work contemplated in the "Whitman Report" has been completed, and that plaintiff has yet to specify or enumerate which environmental problems remain unresolved. Nor has he provided the sellers with a copy of an additional environmental report purportedly labeled "Phase II."

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v. Ceppos, 46 NY2d 223; Herrin v. Airborne Freight Corp., 301 AD2d 500). On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v. Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v. Mayo, 148 AD2d 580). To prevail on the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law, and upon its failure to do so, the motion will be denied (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v. City of New York, 49 NY2d 557, 562). In this regard, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue (id. at 562). Thus, summary judgment, which operates to deprive a party of his or her day in court, is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact (cf. Persaud v. Darbeau, 13 AD3d 347).

With these criteria in mind, it is the opinion of this Court that numerous triable issues exist which preclude the granting of either motion. These include, without limitation, whether either party was ready, willing and able to close title on June 22, 2006, and whether the defendants were justified taking a default upon plaintiff's failure to appear on law day.

Accordingly, it is

ORDERED that the motion and cross motion are denied.

ENTER, [*3]

_________________________

Robert J. Gigante,J.S.C.

DATED: May 4, 2007

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