COMMUNITY NATIONAL BANK TRUST CO. v. JOSEPH

Order affirmed insofar as appealed from, with costs.

We agree with Special Term that the plaintiff "acquiesced in the defendants' consistent pattern of late payments". In the absence of a provision that time was of the essence, the plaintiff was required to communicate unequivocal notice that tardy payments would not be accepted (see, Tri-Mar Contrs. v Itco Drywall, 74 A.D.2d 601, 602; see generally, Ballen v Potter, 251 N.Y. 224; 76 N. Assoc. v Theil Mgt. Corp., 114 A.D.2d 948). Accordingly, since no such notice was sent to the Josephs, the plaintiff was not entitled to reject the payment in question (see, Tri-Mar Contrs. v Itco Drywall, supra). Therefore, Special Term properly granted the cross motion of the Josephs to vacate the judgment entered in favor of the plaintiff and against them in consequence of the purported untimely payment. Weinstein, J.P., Niehoff, Lawrence and Kooper, JJ., concur.