Liberta v. Davis , 81 A.D.2d 752 ( 1981 )

•— Order unanimously affirmed, with costs. Memorandum: In affirming we point out that the only issue before the court involves the right of a purchaser of real property to specifically enforce the purchase contract where, prior to title closing, material damages to the premises resulting from a fire were repaired. Because the contract vendor unilaterally proceeded to repair the fire damage by use of the fire insurance proceeds and restored the real property to its former condition, it is unnecessary for the court to consider the rights of the parties to the contract because of the fire loss, which occurred after the execution of the contract. Under these circumstances the claim that the repairs significantly increased the value of the real property is no defense to the purchaser’s action for specific performance and no legal basis on which to bottom a demand for an increase in the contract price. The parties are getting no more than what they bargained for and plaintiffs are entitled to have the contract specifically performed. (Appeal from order of Erie Supreme Court — vacate default judgment.) Present — Cardamone, J. P., Doerr, Denman, Moule and Schnepp, JJ.