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Sellers Entitled to Keep Downpayment Based Upon Purchaser’s Failure to Close on Law Day

The Second Department determined Supreme Court should have granted the sellers’ motion for summary judgment and allowed the sellers to keep the purchaser’s downpayment based upon the purchaser’s failure to close on the date set by a “time-of-the-essence” demand.  The court explained the applicable law as follows:

“To prevail on a cause of action for the return of a down payment on a contract for the sale of real property, the plaintiff must establish that the defendant breached or repudiated the contract and that the plaintiff was ready, willing, and able to perform on the closing date” … . “While a vendee can recover his [or her] money paid on the contract from a vendor who defaults on law day without a showing of tender or even of willingness and ability to perform where the vendor’s title is incurably defective, a tender and demand are required to put the vendor in default where his [or her] title could be cleared without difficulty in a reasonable time” … . The seller in such a case is entitled to “a reasonable time beyond law day to make his [or her] title good” … . “[W]hile a purchaser must normally first tender performance and demand good title to place a seller in default, when the vendor is given notice of the defect prior to the scheduled closing date and does nothing to correct it until after the closing date, the purchaser need not tender performance as such tender would be meaningless'” … . “[W]here a seller seeks to hold a purchaser in breach of contract, the seller must establish that [he or she] was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close” … . *  *  *

…[T]he sellers demonstrated, prima facie, that they were given no notice of the alleged defect, and that the purchaser was therefore required to appear at closing and tender her performance … . Furthermore, under these circumstances, the sellers were entitled to a reasonable adjournment to allow them to address the purchaser’s objections, notwithstanding the fact that they had declared that time was of the essence … . Moreover, the sellers satisfied their prima facie burden of demonstrating that they were ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for her failure to close … . Martocci v Schneider, 2014 NY Slip Op -5308, 2nd Dept 7-16-14

 

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