Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the judgment is reversed insofar as cross-appealed from, on the law, the words "with interest thereon from the date of this judgment" are deleted, and the words "with interest thereon from November 27, 1985" are substituted therefor, and the matter is remitted to the Supreme Court, Kings County, for entry of an appropriate amended judgment; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
At the trial, a representative from the plaintiffs' title company testified that the title would not be insured because the property was subject to a mortgage. It is axiomatic that a seller cannot place a purchaser in default without first tendering his or her own performance (see, Lawrence v Miller, 86 N.Y. 131; 1776 Assocs. Corp. v Broadway W. 57th St. Assocs., 181 A.D.2d 601). Where, as here, a real estate contract states that the seller shall tender title at closing that a reputable title company will insure, the burden of producing insurable title has been construed as a condition precedent to the seller holding the purchaser in default (see, Laba v Carey, 29 N.Y.2d 302; Kopp v Barnes, 10 A.D.2d 532; Gilchrest-Great Neck v Byers, 27 Misc.2d 1078, affd 13 A.D.2d 1027, affd 11 N.Y.2d 911; Salvin v Weidemann, 276 App Div 454). Since the appellants-respondents could not deliver title in accordance with the contract provisions, they could not declare the purchasers in breach.
Because the parties' contract was still in effect, we find that the appellants-respondents' letter of November 27, 1985, to the purchasers canceling the parties' contract constituted a repudiation (see, Petrizzo v Pinks, 154 A.D.2d 521). The trial court properly awarded the plaintiffs the return of their down payment and moneys expended on the title examination, as
We have reviewed the appellants-respondents' remaining contentions and find them to be without merit.
We agree with the plaintiffs that they are entitled to prejudgment interest (see, Shubert v Sondheim, 138 App Div 800, affd 203 N.Y. 636; Callahan Rd. Improvement Co. v Colonial Sand & Stone Co., 190 Misc. 418). We award the plaintiffs prejudgment interest, measured from November 27, 1985, the date the appellants-respondents repudiated the contract.