The total circumstances can be assessed on the application of the standards for issuance of a preliminary injunction. Here, defendant submitted no affidavit in opposition to plaintiffs' motion. In an affidavit submitted in support of his own prior motion for leave to serve a late answer, defendant asserted that the sale of the apartment is intended to supplement his limited income, and that upon the sale he "would remove to Barbados to the home of a family member. There is nothing in the record to suggest that defendant's intention has changed.
Having sustained, therefore, their burden on "grounds," plaintiffs must satisfy the standards for preliminary injunctive relief, beginning with a showing on the merits of their claim for specific performance. Although the verified complaint asserts other causes of action, their motion proceeds on the claim for specific performance. But, "[p]rovided that the elements required for the issuance of a preliminary injunction are demonstrated in the plaintiff's papers, the presentation by the defendant of evidence sufficient to raise an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion.
In support of their assertion that they were ready, willing, and able to perform the contract, including that they had the "financial capacity to purchase the subject property" see Dairo v Rockaway Blvd. The letter advising of Board of Directors' approval of the transfer evidences satisfaction of a condition to transfer found in the contract of sale.
The home equity line of credit, in an amount approximately double the total purchase price specified in the contract, evidences plaintiffs' financial ability to complete the transfer. Specific performance is an equitable remedy see Yu Han Young v Chiu, 49 AD3d , [2d Dept ] , and so the requirement is that there be no adequate remedy at law for it to be ordered. Satisfaction of the requirement is, in effect, presumed when real property is the subject of the contract. Specific performance of a contract for the purchase and sale of stock was ordered where the stock "had never been listed on any exchange or had any quoted value or any definite market price or any certain value capable of exact ascertainment" and "the defendant was the owner of at least ninety-two per cent of the stock and controlled the balance.
Similarly, "while specific performance is available in appropriate circumstances for the breach of a commercial or residential lease, this equitable remedy is not awarded as a matter of course to enforce real property leases. Where specific performance of a lease is sought, the distinction between physical difference and economic interchangeability may not always be evident.
Compare South Amherst, Ltd. The question is whether, for purposes of an action for specific performance, the ownership interest in a cooperative apartment, comprised of shares of the corporate owner of the property and a long-term proprietary lease, should be treated as real property, requiring no showing as to an adequate remedy at law, or "irreparable harm" for purposes of preliminary injunctive relief see Vincent v Seaman, AD2d , [] , or should be treated as personal property, requiring a showing of "uniqueness," however conceived.
In other words, should the whole be found greater than the sum of its parts? Nor may a dynamic jurisprudence ignore the manner in which economic affairs are conducted or the perception that the members of society have in conducting their affairs.
Specific performance and related preliminary injunctive relief are available remedies, in the appropriate case, for the breach or threatened breach of a contract for the purchase and sale of a cooperative apartment. Other remedies available to the buyer, such as specific performance, replevin of goods identified to the contract, and enforcement of the security interest in rejected goods, will usually be issues for the court.
If there are fact issues for a jury pertinent to such remedies, appropriate instructions should be prepared. Failure to cover does not bar a buyer from resorting to other remedies, Ark.
See Ark. In such cases, the smaller measure is used. Since the party in breach is liable to the injured party for damages for loss, this rule comes into play only when the benefit conferred is greater than the amount the nonbreaching party has lost. He then repudiates. Calhoun—the breaching party—can get his money back, less the damages Arlene suffered as a result of his breach. Upon repudiation of an oral contract governed by the Statute of Frauds, the nonbreaching party is not entitled to her expectation interest, but she may recover in restitution unless the purpose of the statute would be frustrated.
When one party avoids a contract owing to lack of capacity, mistake, misrepresentation, duress, or the like, she is entitled to restitution for benefit conferred on the other party.
Restitution is also available if a contract duty is discharged or never arises because 1 performance was impracticable, 2 the purpose of the contract was frustrated, 3 a condition did not occur, or 4 a beneficiary disclaimed his benefit.
The equitable remedies are specific performance an order directing a person to deliver to the buyer the unique thing the seller contracted to sell , injunction an order directing a person to stop doing that which he should not do , and restitution the return by one party of the benefit conferred on him when the contract is not performed, to the extent necessary to avoid imposing a penalty on the breaching party.
Previous Section. Table of Contents. Next Section. Understand the different types of equitable remedies: specific performance, injunction, and restitution. Overview Really the only explanation for the differences between law and equity is to be found in the history and politics of England dating to the twelfth century, but in practical terms, the distinctions are notable. Types of Remedies in Equity There are three types of equitable remedies: specific performance, injunction, and restitution.
Specific Performance Specific performance is a judicial order to the promisor that he undertake the performance to which he obligated himself in a contract. Replevin also refers to non-real estate commercial transactions. For instance, if a buyer purchases a famous art sculpture at auction, and does not receive the sculpture, the buyer may not be made whole by the return of his money, because there is only one such sculpture in the world for him to buy.
Therefore a civil court may order the auction house to provide him with his sculpture or face penalty. Repossession cases also invoke replevin, but in a different way. In cases where the buyer is in default of their purchase contract, the plaintiff has the right to repossess.
However, that does not extend to cases where injury or breach of peace would be at stake. So if a mother defaults on a car loan payment, but will lose child support if a creditor shows up to repossess the vehicle, the creditor may seek specific performance ordering her to return the vehicle on her own.
Requiring someone to perform work as part of a contract is prohibited by the 13th Amendment in the United States, which bars involuntary servitude.
0コメント