The opinion of the court was delivered by: Vito M. DeStefano, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In this action for a declaratory judgment, etc., the plaintiffs move, inter alia, for summary judgment pursuant to CPLR 3212, seeking a declaration that they are entitled to retain a deposit paid by the defendant for the purchase of real property based upon the defendant's failure to close on the "time of the essence" closing date. The plaintiffs also seek an award of attorneys' fees, to be determined at inquest, based upon the breach of contract, and dismissal of the defendant's answer and counterclaims.
The plaintiffs assert that on November 18, 2008, they entered into an agreement with the defendant whereby the defendant was to purchase real property, consisting of a residence and other improvements, located at 108 Stonebridge Court, New Hartford, NY for $1.8 million, with a deposit of $180,000 to be paid on the signing of the contract, the balance to be paid at closing (Exhibit "D" to Motion: ¶ 3 of Residential Contract of Sale). It is undisputed that the deposit was paid and held in escrow by the plaintiffs' attorney (Exhibit "D" to Motion: ¶ 6; Affidavit in Support of Motion at p.2).
The contract contains the following relevant provisions:
15. Closing Date and Place. Closing shall take place at the office of Seller's attorney at 10:00 a.m. on or about December 12, 2008 or upon reasonable notice (by telephone or otherwise) by Purchaser, at the office of lender's attorney, if any, in Nassau or New York County.
23. Defaults and Remedies.
(a) If Purchaser willfully defaults hereunder, Seller's sole remedy shall be to receive and retain the Downpayment as liquidated damages, it being a agreed that Seller's damages in case of Purchaser's default might be impossible to ascertain and the Downpayment constitutes a fair and reasonable amount of damages under the circumstances and is not a penalty.
41. In the event that either party commences an action or proceeding to enforce their rights under this Agreement, then the prevailing party shall be entitled to recover its reasonable legal fees and expenses from the other party which are incurred in such action or proceeding.
47. Supplementing Paragraph 15. Purchaser shall on five (5) business days notice to Seller be entitled to adjourn the closing on one or more occasion but in no event to a date beyond December 31, 2008 (the "Adjourned Closing Date") and time Shall be Of the Essence with respect to Purchaser's obligations to close on the Adjourned Closing Date. If the closing is adjourned past December 12, 2008, then all adjustments to be made pursuant to Paragraph 18 of the Contract shall be made at the closing as of December 12, 2008, and in addition to any other amounts due Seller by Purchaser, Purchaser shall reimburse Seller the per diem costs of the Seller's existing mortgages (in the amount of $288.36 per day) and insurance premiums for the period December 12, 2008 through the Adjourned closing Date.
Prior to the scheduled closing date, the plaintiffs signed deed and transfer tax documents and arranged for the delivery of pay-off letters from the first and second mortgages as well as the satisfaction of a third mortgage.*fn1
On December 10, 2008, the defendant requested an adjournment of the closing date until December 19, 2008, asserting that "his lender was not ready to close" (Exhibit "E" to Motion).
In a letter dated, December 24, 2008, the defendant terminated the contract and asked that the plaintiffs' counsel "release Purchaser's $180,000.00 downpayment [sic] from escrow, and return it to me in the enclosed FedEx envelope * * * [b]e advised that as directed you are not to release the Purchaser's downpayment [sic] from escrow to anyone other than Purchaser" (Exhibit "G" to Motion: Letter dated December 24, 2008]).
On this motion, plaintiffs argue that inasmuch as they were ready, willing and able to perform and that the closing did not take place on the scheduled date because of defendant's wrongful termination of the contract, they are entitled to a ...