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Real Property Law
Ambiguous Time of the Essence Notice Held Ineffective
Krishna v. Jasper Old Westbury 66 LLC NYLJ 8/23/19, p. 28, col. 4 AppDiv, Second Dept. (memorandum opinion)
In an action by contract vendee for return of a down payment, contract vendee appealed from Supreme Court's grant of summary judgment to seller, and from Supreme Court's cancellation of contract vendee's notice of pendency. The Appellate Division reversed, awarding summary judgment to contract vendee and restoring the notice of pendency.
Contract vendee contracted to purchase two parcels, and made down payments on both parcels. The contracts provided that the down payments, which were held in escrow by seller's lawyer, were to be liens on the subject property. Contract vendee failed to obtain financing by the date contemplated in the contracts. Seller then sent notices with respect to each contract, purporting to make time of the essence. The notices indicated that contract vendee would be held in default if it failed to close "by the date as indicated herein." The notices indicated that "a closing has been scheduled for December 19, 2016 at 2:00 P.M," but also indicated that contract vendee would be in default unless the transaction were closed "by the end of the business day on December 15, 2015." Contract vendee sent a notice purporting to reject seller's efforts to force time of the essence closings, and seller sent contract vendees notices of default with respect to both contracts for failure to appear on December 19. The notices also indicated that sellers were entitled to release of the down payments.
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