Summary
In Glanzer, the Appellate Division, First Department held that the failure of purchasers of a cooperative apartment to submit an application within 10 days was a breach of contract entitling the seller to recover the down payment as liquidated damages, and that a different interpretation was not required by the fact that the contract did not make time of the essence.
Summary of this case from Alper v. SeaveyOpinion
December 9, 1999
Order, Supreme Court, New York County (Carol Huff, J.), entered on or about March 30, 1999, which, in an action by plaintiffs sellers to recover a down payment on the sale of a cooperative apartment held in escrow by defendants buyers' attorney, granted plaintiffs' motion for summary judgment, unanimously affirmed, without costs.
Charles E. Knapp for Plaintiffs-Respondents.
David M. Goldberg for Defendants-Appellants.
ROSENBERGER, J.P., TOM, MAZZARELLI, LERNER, RUBIN, JJ.
Plaintiffs' preanswer motion for summary judgment was properly entertained by the IAS court without giving CPLR 3212 notice, the parties' submissions clearly indicating that the case involved only a question of law fully appreciated and briefed on the motion (see, Mihlovan v. Grozavu, 72 N.Y.2d 506, 508), namely, whether the contract provision requiring defendants to submit their application for Board approval within 10 days of contract execution was untenable. This issue was properly decided in favor of plaintiffs, the plain terms of the contract requiring a timely submission of the Board package regardless of whether defendants had previously obtained a commitment letter or gained access to the cooperative's documents. A different interpretation of defendants' obligation in this respect is not required by the fact that the contract did not make time of the essence. Defendants' failure to submit the Board package within the allotted 10 days was a breach of contract entitling plaintiffs to the liquidated damages stipulated in the contract for a breach by defendants. Also constituting a material breach, as the IAS court held, was defendants' misrepresentation of their bankruptcy status.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.