This action stems from a contract of sale of real property containing a three-family dwelling for $680,000. Prior to the closing, a fire, presumably caused by vandalism, destroyed the entire three-family dwelling. When the parties failed to agree about a post-fire price, defendant- sellers unilaterally cancelled the contract and returned the down payment to plaintiff-buyer. In response, plaintiff-buyer commenced this action for specific performance. Defendant-sellers now move for a dismissal of the action on the grounds of personal jurisdiction and for summary judgment on the merits. Plaintiff-buyer cross moves for partial summary judgment on liability.

The court next examines the motion and cross motion for summary judgment on the merits. A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). Once this showing has been made, the [*2]burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Romano v. St. Vincent's Medical Center of Richmond, 178 AD2d 170 (1st Dept., 1991). See also, Bensonhurst Real Estate v. Ltd v. Helsam Realty Co., 1 AD3d 302 (2nd Dept. 2003).

Here, defendant-sellers aver that the contract was void once the three-story building was destroyed, and the only remedy available to plaintiff-buyer was to attempt to enter into a new contract for a reduced price. Under this view, once the parties failed to reach a meeting of the minds on a reduced price, defendant- sellers had no duty to sell the property to plaintiff. Instead, their only duty was to return the down payment, which they did. This court, however, finds that defendant- sellers' position is untenable under applicable law and circumstances of this case.

Preliminarily, it should be pointed out that the rights and remedies of a buyer and seller of real property with regard to risk of loss between the time of contract and conveyance are governed by General Obligations Law §5-1311, entitled the Uniform Vendor and Purchaser Risk Act. This section is made part of every contract of sale unless specifically excluded. Prior to the enactment of this section, the vendee bore the risk of loss in the event of a substantial damage or a taking by condemnation subsequent to entering into a contract of sale and prior to closing. See Relfe v. Osmer, 252 NY 320 (1906); Clarke v. Long Island Realty Co., 26 A.D. 222 (1908). The contract of sale was deemed to effect an equitable conversion, making the seller the holder of legal title to the property as security for the purchase price and making the buyer in equity the owner of the property. See Samuelson Williston, "Williston On Contract," §933A (3rd Ed. 1966) Friedman, Contracts and Conveyances of Real Property, §4.31, p. 227 (2d Ed. 1963). The buyer took subject to the risk of damage or condemnation occurring after the contract. Id. The buyer could not rescind the contract of sale by reason of substantial damage or condemnation of the premises and remained liable for the purchase price. Id.

The Uniform Vendor and Purchaser Risk Act changed the principle of equitable conversion. Specifically, General Obligations Law § 5-1311 incorporates New York's version of the Uniform Vendor and Purchaser Risk Act which eliminated a purchaser's risk of loss if the property were destroyed before a closing through no fault of the purchaser. See generally Lucenti v. Cayuga Apts., 48 NY2d 530, 534-542 (1979). It provides that unless there is an express agreement in the contract to provide otherwise, the risk of loss will remain on the [*3]seller until the time that legal title or possession has been transferred to the purchaser. See General Obligations Law §5-1311(1)(a); Lucenti v. Cayuga Apts., supra; see also Citibank v. Liebeskind, 237 AD2d 478 (1st Dept. 1997 ). Moreover, General Obligations Law §5-1311 has been interpreted to allow a purchaser faced with material damage an election between recision of the contract or an abatement of the purchase price where the purchaser still desires to enforce the contract of sale. Lucenti v. Cayuga, supra; Citibank v. Liebeskind, supra.

Here, contrary to defendant-sellers contention, the subject real estate contract contains no provision with regard to risk of loss between the time of the contract and conveyance. The only situation for which "the contract expressly provides otherwise" is "Paragraph 8 of the Rider to the Contract of Sale," which states that "the seller shall not be required to bring any action or proceeding or incur any expenses above $2,500.00 whatsoever to render the title marketable." Clearly, such section involves the inability of defendant -sellers to deliver title. However, there is no such claim here. Likewise, the "as is" provision of the contract should not be construed to be a risk of loss provision. This clause is not one which expressly shifts the burden of the risk of loss from where it is otherwise placed by the statute. Indeed, such clauses are usually intended to negate the existence of any presentations by seller as to the particular condition, fitness of construction, etc., of the premises sold. See Approved Properties, Inc. v. City of New York, 52 Misc 2d 956, 277 N.Y.S.2d 236 (1966 ). Thus, it is clear that plaintiff- purchaser is entitled to rely upon the relief provided by General Obligations Law §1311.

Accordingly, where, as here, the premises to be conveyed was destroyed prior to title closing, and purchaser was out of possession under the real estate contract containing no risk of loss provision, plaintiff- buyer may seek specific performance with abatement of purchase price. However, in order to establish entitlement to specific performance of the contract, plaintiff is required to demonstrate that it was ready willing and able to perform its own obligations under contract. Jewell v Rowe 119 AD2d 634 (2nd Dept. 1986). The evidence presented by plaintiff-buyer, which defendant-sellers have failed to refute, demonstrates that plaintiff-buyer had the requisite funds and financial commitments from others to meet its obligations under the contract. Thus, plaintiff- buyer has established entitlement to summary judgment on its claim for specific performance with an abatement of the purchase price.

For the foregoing reasons, it is hereby

ORDERED that defendant-sellers' motion to dismiss the action based upon the ground of lack of personal jurisdiction is denied; it is further

ORDERED that defendant-sellers' motion for summary judgment dismissing [*4]the action on the merits is denied; it is further

ORDERED that plaintiff-buyer's motion for summary judgment is granted and the Court ORDERS specific performance of the "November 2006 Residential Contract of Sale"; and it is further

ORDERED that this action is set down for a hearing, where the parties shall submit proof as to the fair and reasonable market value of the land and the improvements which remained thereon after the fire. The hearing shall take place on November 5, 2007 at 9:30 A.M. in IA-1 Part, Room 809, 851 Grand Concourse, Bronx, New York 10451.

This constitutes the Decision and Order of the Court.

Dated: October 9, 2007_________________________

Bronx, New YorkHon. Dianne T. Renwick, J.S.C.