In June 2016, plaintiff and defendants entered into a contract whereby defendants agreed to sell to plaintiff for $960,000 certain real property located on Lockhart Mountain Road in the Town of Queensbury, Warren County. Thereafter, defendants refused to close on the sale of the property. Plaintiff then commenced this action in August 2016 seeking specific performance of the real estate contract. In September 2016, and prior to any disclosure, plaintiff made this motion for summary judgment.

"Where, as here, the relief is sought via summary judgment, the proponent of such relief has the initial burden to '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'" (NY Professional Drywall of OC, Inc. v Rivergate Dev., LLC, 137 AD3d 1509, 1511 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "Only when the movant bears this burden and the nonmoving party fails to demonstrate the existence of any material issue of fact will the motion be properly granted" (Staunton v Brooks, 129 AD3d 1371, 1372 [2015]). On a motion for summary judgment, the facts are viewed in the light most favorable to the nonmovant (see e.g. Tirse v Andrews, 128 AD3d 1112, 1114 [2015]).

"[T]o obtain specific performance, 'plaintiff[] [was] required to demonstrate that [he] substantially performed [his] contractual obligations and [was] ready, willing and able to fulfill [his] remaining obligations, that defendant[s] was able but unwilling to convey the property and that there is no adequate remedy at law'" (Ouimet v Fitzsimmons, 68 AD3d 1507, 1508 [2009], lv denied 14 NY3d 714 [2010], quoting Alba v Kaufmann, 27 AD3d 816, 818 [2006]). Plaintiff submitted proof establishing that the property had been listed by defendants with a real estate agent. He met with defendants on more than one occasion, discussed various aspects of the [*2]property with them, and negotiated an agreed upon price and conditions of the sale. Both parties consulted with legal counsel. Plaintiff states in his affidavit (and submitted evidence establishing) that he satisfied all his contingencies under the contract and was (and continues to be) ready, willing and able to purchase the property. Plaintiff has met his threshold burden in this motion for summary judgment seeking specific performance.

In opposition, defendants contend that defendant Koock Jung (formerly a practicing psychiatrist) was not competent to enter into the contract. "In this regard, the case law makes clear that 'a person is presumed to be competent at the time of the performance of the challenged action and the burden of proving incompetence rests with the party asserting incapacity'" (Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282, 1284 [2007], quoting Matter of Obermeier, 150 AD2d 863, 864 [1989]). "Thus, to prevail, [defendants] ha[ve] to demonstrate that [Koock Jung's] mind was 'so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction' and, further, that such incompetency/incapacity existed when he executed the [contract]" (Sears v First Pioneer Farm Credit, ACA, 46 AD3d at 1284-1285, quoting Aldrich v Bailey, 132 NY 85, 89 [1892] [internal citation omitted]). "[N]either hindsight nor regret establishes incompetency" (Thomas v Gray, 121 AD3d 1091, 1092 [2014], lv denied 25 NY3d 961 [2015] [internal quotation marks and citation omitted]).

Defendants have submitted a considerable amount of medical records and evidence regarding Koock Jung's medical problems. In addition, one of his sons, who is a medical doctor, detailed his father's condition and opined regarding his father's illness that:

"[The condition] made it difficult, perhaps impossible, for him to read and comprehend the real estate contract he signed this summer. He has memory loss, issues with balance and what is referred to as 'brain fog.' The brain fog sometimes would be so severe that there was an instance where he did not even recognize a patient he had known and treated for thirty years." (Affidavit of Michael Jung).

More significantly, defendants submitted an affidavit and attached report from one of Koock Jung's treating physicians, Joseph G. Jemsek, who is board certified in internal medicine and infectious disease. Jemsek sets forth details about Koock Jung's condition, including that his diagnosis included, "Borreliosis Complex with neuroborreliosis" and further that "he is especially impacted with regards to short-term memory, concentration, and overall mentation ('brain fog'); he also reported auditory hallucinations." Based on the detailed information in his report, Jemsek states: "It is my best medical opinion to a reasonable degree of medical certainty, that [Koock] Jung's condition was severe enough to preclude him from fully understanding or entering into a contract for the sale of his home."

To be sure, plaintiff submitted strong proof (if credited) indicating that Koock Jung was competent at the time he signed the contract and that, with hindsight, defendants ostensibly regretted their decision to sell. At this procedural junction, however, the facts must be viewed in the light most favorable to defendants. Although defendants face a difficult task in proving that Koock Jung lacked competency at the time he executed the contract, nonetheless, the facts viewed most favorably to defendants reveal triable issues.

Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter, it is

ORDERED that the motion of plaintiff's motion for summary judgment is denied; and it [*3]is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied; and it is further

ORDERED that the parties appear on February 10, 2017 at 10:00 a.m. at the Warren County Courthouse for a conference to set deadlines for disclosure as well as a date for trial.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated September 22, 2016. Counsel for defendants is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon the plaintiff in accordance with CPLR 5513.