March 28, 2016

The Supreme Court, Suffolk County (Hon. Paul J. Baisley, Jr.) has dismissed a specific performance action as premature, in Wunderlich v. Liberty Meadows, LLC, Index No. 64450/2014.  The plaintiff had brought the action before setting a “time of the essence” closing.  When the defendant moved to dismiss the action as premature, the plaintiff argued that the defendant “anticipatorily breached” the contract, thus excusing the plaintiff from setting a time of the essence closing.  The Supreme Court disagreed with the plaintiff and dismissed the action, holding that there was no anticipatory breach because the “defendant never expressed a clear and unequivocal intent not to perform or to abandon the contract….”