Miller v. Almquist

241 A.D.2d 181 (1998)

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Nature of the Case

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Facts

P and D entered into a contract of sale for the Premises at a purchase price of $545,000. The contract provided for a 10% down payment and contained no financing contingency clause. The contract specified a closing date of April 1, 1997 but did not specify that time was of the essence. P paid a down payment of $54,500 to be held in escrow by D's attorney. The contract further provided that in the event P defaulted, D would be permitted to terminate the contract and P would forfeit their down payment. The Cooperative Board of Directors approved the sale on March 25, 1997, six days prior to the scheduled closing date. P experienced delays arising from loan clearance and documentation. By letter dated March 31, 1997, P's attorney sought an adjournment of the closing until April 16, 1997, subject to the availability of the cooperative's transfer agent. Neither party appeared on April 1st. D's attorney agreed to the adjournment but claimed that time was now of the essence. On April 14 P's lender's attorney asked how certain tax liens would be resolved. P's attorney contacted his client, who indicated that the liens had been satisfied years ago, but that they could not immediately locate canceled checks evidencing satisfaction of the liens. The lender required proof of payment by the next morning, April 15th, indicating that otherwise, the April 16th closing would have to be adjourned pending receipt of proof. P received a faxed copy of the satisfaction of lien from the New York State Department of Taxation and Finance. P provided the details at 11:24 A.M. on April 15th. This evidence of satisfaction was acceptable to the lender. However, a closing could not be scheduled with the lender at this time for the following day due to the delay in obtaining the satisfaction. The lender indicated that it was available to close on April 18th. P requested the new time and offered to pay D $300 for each day until closing. P did not appear on April 16 and D claiming that time was of the essence stated that P was in default and the downpayment was forfeited. P claimed they were ready, willing, and able to close on April 18. A closing date was reserved for April 23, 1997, as the date for the cooperative's transfer agent. By an April 22, 1997 letter, D's attorney then contacted the transfer agent to cancel the April 23, 1997 reservation. P sued D. The court granted D’s motion for summary judgment. P appealed.