Specific Performance - Contract for Sale of Real Property - Failure to Repay Down Payment after Return of Allegedly Expired Cashier's Check Rendered Plaintiffs in Breach of Contract - No Entitlement to Specific Performance Enforcing Sale

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about November 14, 2023, which, after a nonjury trial, denied plaintiffs' request for specific performance, unanimously affirmed, without costs.

The trial court properly denied plaintiffs' request for specific performance compelling defendant to sell the real property pursuant to their contract of sale executed in or around April 2018. The contract required plaintiffs to make a $10,000 downpayment due upon signing. It also gave defendant the option to cancel the contract if plaintiffs did not obtain a mortgage commitment within 45 days of the contract's execution. Plaintiffs gave defendant's attorney a cashier's check for $10,000 on May 7, 2018.

On March 14, 2019, at which time plaintiffs still had not received a mortgage commitment, plaintiffs asked defendant for the return of their $10,000 downpayment. Plaintiff Aicha Traore testified that this was because the check had expired, and a new one needed to be issued. Defendant returned the check, which plaintiffs deposited. Plaintiffs did not thereafter give defendant a replacement downpayment check.

Plaintiffs' failure to re-pay the downpayment after they received the check back from defendant rendered plaintiffs in breach, excusing defendant from further performance (see Perlman v Israel & Sons Co., 306 NY 254, 257 [1954]). The breach also meant that plaintiffs were not entitled to specific performance (see 301 E. 60th St. LLC v Competitive Solutions LLC, 217 AD3d 79, 85 [1st Dept 2023]; Stadtmauer v Brel Assoc. IV, 270 AD2d 59, 60 [1st Dept 2000]).

We have considered plaintiffs' remaining contentions and find them unpersuasive. Concur—Kern, J.P., Kennedy, Gesmer, Pitt-Burke, O'Neill Levy, JJ.