In Yitzhaki v. Sztaberek (38 AD3d 535 [2d Dept 2007]) the plaintiff commenced an action seeking specific performance of a contract for the sale of real property. Under the contract, the plaintiff had 45 days from receipt of a fully executed contract to provide the defendant's attorney with a firm written mortgage commitment. The contract recited that time was of the essence. The plaintiff asked for an extension of time to secure a mortgage commitment, but the defendant's attorney, while acknowledging the request, did not respond to it because the attorney was unable to reach the defendant. The defendant claimed that he never extended the plaintiff's time to secure a mortgage commitment, and instead elected to cancel the contract. The Appellate Division, Second Department, affirmed the Supreme Court's decision granting the plaintiff's motion for summary judgment directing specific performance. The Appellate Division reasoned: "Despite the provisions of the mortgage contingency clause, the defendant neither cancelled the contract nor extended the plaintiff's time to secure a mortgage commitment. His purported cancellation, contained in his answer to the plaintiff's complaint, was untimely since the cancellation was made after plaintiff tender the mortgage commitment and sought to close title." (Yitzhaki, 38 AD3d at 536.) Thus, the Appellate Division ruled that "the fact that the defendant refused to close title constituted an anticipatory breach of the contract, obviating the need by plaintiff to tender performance prior to the commencement of the instant action" (Id. at 537.)