Baltic v. RossiBaltic v. Rossi
In an action, inter alia, for the return of a down payment on a contract for the sale of real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), entered February 28, 2001, as denied their motion for summary judgment dismissing the complaint, and on their counterclaim.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate judgment in accordance herewith.
In March 2000 the plaintiffs, Charles and Ivana Baltic, entered into a contract to purchase a residence in Rye from the defendants, Vincent and Evelyn Rossi, and paid a down payment of $164,800. The contract stated that the closing would take place on June 30, 2000, but it did not declare that time was of the essence. Nevertheless, in a letter dated June 1, 2000, written in response to the defendants’ request for a one-month adjournment of the closing date, the plaintiffs’ attorney characterized the request as an anticipatory breach and declared that time was now of the essence. The closing never took place. The defendants retained the down payment as liquidated damages, and the plaintiffs commenced this action. Subsequently, the defendants moved, inter alia, for summary judgment to dismiss the complaint. The Supreme Court denied the motion, holding that the correspondence between the parties was so inconsistent that it could not find as a matter of law that either party breached the contract. We now reverse.
When a contract for the sale of real property does not state that time is of the essence, either party is entitled to a reasonable adjournment of the closing date (see, Tarlo v Robinson,