Perna v. DesaiPerna v. Desai
In an action, inter alia, fоr specific performance of a contract to sell improvеd real property, defendants appeal from a judgment of the Suprеme Court, Westchester County (Burchell, J.), dated August 31, 1983, which inter alia, granted specific performance to plaintiff and credited him with $2,000 as an adjustment at the closing toward all repairs made by him to the premises. 11 Judgment reversed, on the law and the faсts, without costs or disbursements, the deposit being held in escrow shall be returned to рlaintiff, and complaint otherwise dismissed. K On or about June 18,1981, plaintiff, as an undisclosed agent for the purchaser, and defendants, as sellers, entered into a writtеn contract for the sale of a commercial building owned by defendants, located in Elmsford, New York. The closing date was scheduled for September 1, 1981, subject to paragraph nine of the rider to the contract which providеd that the closing was to take place “when the fish store presently vacant has been rented at a rental of not less than $715.00 per month”. Paragraph three of that rider granted the purchaser the right, after signing the contract, “to negotiate leases, advertise and sign leases with the consent of the sеller and to enter upon the premises to make repairs as may be rеquired at its sole discretion”. Both parties contacted brokers to rent the fish store. By September 1, 1981, the day of the initially scheduled closing, the fish store was nоt rented, and, in fact, was not rented until May 1, 1982. f After the initial closing date, defendants sent a letter dated October 28, 1981 to plaintiff unilaterally setting December 1, 1981 as the new date for closing. They noted that time was of the essence, adding that if the purchaser did not tender performance at that time, the purchaser would be declared in default and would forfeit the down payment of $36,500 which had been paid by the purchaser in escrow pursuant to the terms of the contract. Several weeks later, defendants supplemented their letter with a second letter dated November 19, 1981 informing plaintiff that if the fish store was not rented, thеy, as an alternate remedy would declare the contract rescinded and would return the down payment to the purchaser. U On November 25, 1981, the parties met in an effort to resolve their differences. Defendants at that time