Bujalski v. Schmitt — 186 A.D.2d 1066

Majority

p. 1066

Joseph B. Bujalski, Respondent, v Barbara Schmitt et al., Respondents, and Mary Grosslinger et al., Appellants. Barbara A. Bujalski, Third-Party Plaintiff-Respondent, v Milford L. Phinney, Third-Party Defendant-Respondent.

— Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Summary judgment should have been granted dismissing plaintiff’s complaint seeking specific performance of a sales contract. Although the contract is not invalid on the ground that it was signed by the conservator (RPAPL 1745 [1]), plaintiff’s action for specific performance, commenced before court approval of the sale was obtained, was premature. The withdrawal by the conservator of his petition seeking court approval of the sale does not necessarily defeat plaintiff’s rights. Plaintiff, a relative of the conservatee, is authorized to commence such a special proceeding (see, RPAPL 1712). (Appeal from Order of Supreme Court, Orleans County, Miles, J.H.O. — Summary Judgment.) Present — Callahan, J. P., Green, Balio, Davis and Doerr, JJ.