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LATIPAC CORP., plf-ap, v. BHM REALTY LLC def-res

3361. LATIPAC CORP., plf-ap, v. BHM REALTY LLC def-res — Goldberg Weprin Finkel Goldstein LLP, New York (Matthew E. Hearle of counsel), for ap — Greenblatt & Agulnick, P.C., Great Neck (Matthew W. Greenblatt of counsel), for res — Order, Supreme Court, New York County (Joan A. Madden, J.), entered April 27, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff's cross motion for summary judgment, unanimously affirmed, without costs.

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3361. LATIPAC CORP., plf-ap, v. BHM REALTY LLC def-res — Goldberg Weprin Finkel Goldstein LLP, New York (Matthew E. Hearle of counsel), for ap — Greenblatt & Agulnick, P.C., Great Neck (Matthew W. Greenblatt of counsel), for res — Order, Supreme Court, New York County (Joan A. Madden, J.), entered April 27, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff’s cross motion for summary judgment, unanimously affirmed, without costs.

Plaintiff purchaser failed to establish, as a matter of law, that it was entitled to a return of its deposit on a real estate contract (see Donerail Corp. N.V. v. 405 Park LLC, 100 AD3d 131, 137 [1st Dept 2012]; see also Martocci v. Schneider, 119 AD3d 746, 748 [2d Dept 2014]). Even if plaintiff had established that defendant seller was in breach of the contract, which it did not, it would still be obligated to tender performance so long as the seller had the ability to cure its default within a reasonable time (see e.g. Illemar Corp. v. Krochmal, 44 NY2d 702, 703 [1978]; see also Martocci, 119 AD3d at 748). Plaintiff failed to tender performance and did not afford the seller an opportunity to cure.

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