In KPSD Mineola, Inc. v. Jahn , KPSD Mineola contracted to buy some real estate from Myra Jahn, but after she refused to sell the parcel, KPSD sued in Nassau County Supreme Court for "specific performance" -- to force a sale.
When Jahn sought the case's dismissal, based on KPSD's noncompliance with the contract's mortgage contingency provision, the Supreme Court denied that request.
On appeal, the Appellate Division, Second Department, affirmed the lower court's decision.
Although she showed KPSD never obtained a mortgage commitment nor provided a signed agreement to close as contractually mandated, KPSD raised a "triable issue of fact" as to whether Jahn had waived the contract's requirements. (While she raised additional arguments in support of the case's dismissal, the AD2 refused to consider them, as they were raised for the first time on appeal and thus not properly before the appellate court.)
How's that for a closing?
To download a copy of the Appellate Division's decision, please use this link: KPSD Mineola, Inc. v. Jahn