Sorkin v. Lehrer , 114 A.D.2d 950 ( 1985 )

—In an action sounding in breach of contract, defendant appeals from so much of an order of the Supreme Court, Queens County (Lonschein, J.), dated June 26, 1984, as denied her cross motion for summary judgment dismissing the complaint.

Order modified, on the law, by, upon searching the record, deleting the provision thereof denying plaintiffs’ motion for summary judgment and by substituting therefor a provision granting summary judgment to plaintiffs on their cause of action for specific performance of the contract of sale, and that cause of action is severed. As so modified, order affirmed, insofar as appealed from, with costs to the plaintiffs, and matter remitted to Special Term for entry of an appropriate judgment.

The parties executed a contract for the sale to plaintiffs of the shares allocated to defendant’s apartment, which shares defendant would have had the right to purchase as soon as the building’s conversion to cooperative ownership was completed. Although defendant was not technically the owner of the shares at the time of their contract, her agreement to sell them included an implied agreement to purchase them as soon as possible. Defendant has since purchased those shares.

No trial is required to determine the terms of the contract; defendant is clearly in breach thereof, and there is no issue as to whether plaintiffs are ready, willing, and able to perform. Therefore, plaintiffs are entitled to specific performance of the contract. Mangano, J. P., Thompson, Bracken and Brown, JJ., concur.