This section contains the nature of the case and procedural background.

Voorheesville (P) signed a standard preprinted contract with Tompkins (D) to purchase a portion of D's property located in the Village of Voorheesville. The contract called for the property to be conveyed by warranty deed subject to all conditions, restrictions, and easements of record and all zoning and environmental protection laws if these did not render the title unmarketable. The property was about 25 acres of land to be used for recreational purposes. P intended to leave the land undeveloped. Prior to closing, P's attorney sent D's attorney a copy of the Village subdivision regulations and requested that D comply with them. D did not seek subdivision approval, sent a time of the essence notice, demanded closing, and threatened anticipatory breach of contract. P failed to close, and D canceled the contract and returned the deposit. Then P informed D that the cancellation was unacceptable because D's failure to obtain subdivision approval rendered title unmarketable. P then sought the approval from the Village, and that application was denied because the application must be submitted by the property owner or an agent of the owner. P then sued D for specific performance and moved for partial summary judgment. The court ordered the contract be performed and directed D to apply for Village approval and close on the property within a reasonable time after approval. This was affirmed by the Appellate Division. This appeal resulted.

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