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PRANA PARTNERS v. BRITTBRAN REALTY, INC.

12 A.D.3d 198 (2004)

783 N.Y.S.2d 811

PRANA PARTNERS, Appellant, v. BRITTBRAN REALTY, INC., Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

November 9, 2004.

The trial court correctly determined that the rider on which plaintiff relies to show a breach by defendant was not part of the parties' contract. However, plaintiff should not have been charged with an anticipatory breach of the contract where defendant seller acknowledged that it could not deliver title on the closing date (see Gargano v Rubin, 200 A.D.2d 554 [1994]). Under the circumstances, the contract should be deemed lapsed...

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