Defendant Muhammed A. Ali, brings the instant motion, pursuant to CPLR §2221, seeking to reargue the Court's decision dated September 17, 2014, granting Plaintiff's motion for summary judgment. Defendant argues that issues of fact exist to preclude granting Plaintiff's motion. For the reasons set forth below, Defendant's motion to reargue is granted and the Court adheres to its prior decision.

Plaintiff brought this action for specific performance and for damages sustained as a result of Defendant Muhammed Ali's ("Defendant Ali") alleged breach of contract, for the sale of real property located at 211 Hull Street in Brooklyn. The contract was executed in January or February 2013, with a purchase price of $560,000. The contract required that Plaintiff deposit a down payment of $30,000, with the remaining balance due at closing. Plaintiff duly deposited the required sum with Defendant Ali's escrow agent, Defendant Henry Kohn ( "Defendant Kohn"). The terms of the contact stipulated that a closing date would take place on or about sixty days after execution of the contract. Plaintiff maintains that he expected the closing date to be sometime in April. According to Plaintiff, the contract did not contain a "time is of the essence" clause at the time that it was executed.

On February 27, 2013, Plaintiff alleges that he received an altered contract from Defendant Kohn, which contained a "time is of the essence" closing date of March 1, 2013. Further, the altered [*2]contact purported to give Plaintiff the option to extend the closing date for an extra 15 days, on the condition that Plaintiff pay an additional $26,000 to Defendant Kohn, for a total contract down payment of $56,000. Plaintiff maintains that he rejected the altered contract and approached Defendant Kohn on March 14, 2013, about scheduling a closing date pursuant to the first contact. Plaintiff concedes, however, that he paid the $26,000 down payment, because he wanted to ensure that Defendant Ali would perform his duties under the original contract.

On March 11, 2013, Defendant Ali conveyed the subject property to MBA Property Holdings LLC ("MBA") for a selling price of $600,000. Pursuant to the instant motion to reargue, Defendant Ali asserts that an issue of fact exist as to whether Plaintiff tendered the $26,000 down payment at the appropriate time, in order to be entitled to 15 days extension. Alternatively, Defendant Ali claims that Plaintiff's tender of the $26,000 down payment ratified the altered contact, and that Plaintiff breached the altered contract by attempting to schedule a closing date in accordance with the first contract. In opposition, Plaintiff asserts that he never accepted the terms of the altered contract. Plaintiff also argue that Defendant Ali breached the first contract by refusing to schedule a closing date and by conveying the property to MBA.

A motion to reargue is addressed to the sound discretion of the court which decided the prior motion ( see Marini v Lombardo, 17 AD3d 545, 546 [2nd Dept 2005]). The motion may be granted upon a showing that the court overlooked or misapprehended facts or law, or mistakenly arrived at its earlier decision (Carrillo v PM Realty Group, 16 AD3d 611 [2nd Dept 2005]). A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented (see Pryor v Commonwealth Land Title Insurance Company, 17 AD3d 434, 436 [2nd Dept 2005]. New questions which were not previously advanced may not be raised on a motion to reargue (see Levi v Utica First Insurance Company, 12 AD3d 256, 258 [1st Dept 2004]).

In granting the instant motion, this Court seeks to clarify the basis of its prior ruling. It is undisputed that Plaintiff and Defendant Ali entered into a contract, which Defendant Kohn attempted to modify. Plaintiff maintains that he did not consent to a modification of the contract. Therefore, the issue before the Court is whether by tendering the additional $26,000 down payment, Plaintiff consented to the modification.

The modification of a contract results in the establishment of a new agreement between the parties which pro tanto supplants the affected provisions of the original agreement while leaving the balance of it intact (Beacon Terminal Corp. v Chemprene, Inc., 75 AD2d 350 [2nd Dept 1980]; Becker v Faber, 280 NY 146 [1939]). Fundamental to the establishment of a contract modification is proof of each element requisite to the formulation of a contract, including mutual assent to its terms (Ballard v Friedeberg, 177 AD 715 [1st Dept 1917]). Mere silence, when not misleading, [*3]cannot be construed as acceptance (see Matter of Albrecht Chem. Co., 298 NY 437 [1949]). However, an offer may be accepted by conduct (see Eldor Contr. Corp. v County of Nassau, 272 AD2d 509 [2nd Dept 2000]).

In the instant case, Defendant Kohn, attempted to modify the contract by inserting a time is of the essence closing date, with 15 days extension upon payment of $26,000. While Plaintiff maintains that he did not consent to the modification, Plaintiff's conduct in tendering the $26,000 demonstrated an intent to be bound by the terms of the modified contract. Therefore, the Court finds that the parties effectuated a valid modification to the original contract, thus entitling Plaintiff to the 15 days extension.

The next issue before the Court is whether Plaintiff committed anticipatory breach when he contacted Defendant Kohn on March 14, 2013, in an attempt to schedule a closing date in accordance with the original contract. Pursuant to the doctrine of anticipatory breach, a wrongful repudiation of a contract by one party before the time for performance entitles the other party to immediately claim a total breach (see American List Corp. v U.S. News and World Report, Inc., 75 NY2d 38 [1989]). However, where there is an option contract—an agreement, for consideration paid, to hold an offer open until a specified date—the general rule is that the provisions of the contract must be complied with strictly, in the manner and within the time specified (see T.I.P. Holding No. 2 Corp. v Wicks, 63 AD2d 263 [2nd Dept 1978]; Kaplan v Lippman, 75 NY2d 320, 324 [1990]; Leonard v Ickovic, 79 AD2d 603 [2nd Dept 1980]).

The Court finds that by paying the additional $26,000, Plaintiff was allotted an extra 15 days, from March 1st though March 16th, in which to perform. The Court further finds that Defendant Ali beached the modified contract when he sold the subject property to MBA on March 11th. Defendant Ali's contention that Plaintiff committed anticipatory breach of the altered contract is of no moment because Defendant Ali conveyed the property to MBA on March 11th, three days before Plaintiff approached Defendant Kohn on March 14th and five days before the expiration of the 15 days extension. Therefore, Plaintiff met his burden to merit summary judgment and Defendant Ali failed to raise a triable issue of fact.

Accordingly, the motion to reargue by Muhammed A. Ali is GRANTED, and upon reargument, the Court adheres to its prior decision.

This constitutes the Decision and Order of the Court.

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