Plotch v. 375 Riverside Drive Owners, Inc.

• Decision Date: 09 February 2012
• Citation: Plotch v. 375 Riverside Drive Owners, Inc., 92 A.D.3d 478, 938 N.Y.S.2d 524, 2012 N.Y. Slip Op. 906 (N.Y. App. Div. 2012)
• Parties: Adam Paul PLOTCH, Plaintiff–Appellant, v. 375 RIVERSIDE DRIVE OWNERS, INC., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00906

92 A.D.3d 478

938 N.Y.S.2d 524

Adam Paul PLOTCH, Plaintiff–Appellant,

v.375 RIVERSIDE DRIVE OWNERS, INC., et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Feb. 9, 2012.

Paula A. Miller, P.C., Smithtown (Paula A. Miller of counsel), for appellant.

Cantor, Epstein & Mazzola, LLP, New York (Rachael E. Gurlitz of counsel), for respondents.

TOM, J.P., SWEENY, ACOSTA, RENWICK, ROMÁN, JJ.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered July 8, 2010, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for summary judgment on his breach of contract, conversion, and unjust enrichment causes of action, unanimously affirmed, with costs.

The terms of sale for the purchase of the cooperative apartment unit unambiguously stated that the balance of the purchase price must be paid within 30 business days from the date of sale, and that “time is of the essence” with respect to the closing date. Contrary to plaintiff-purchaser's contention, the lack of a date certain in the terms of sale did not render the “time is of the essence” provision invalid or unenforceable. Because the record establishes that plaintiff failed to submit the balance of the purchase price within 30 days of the auction, the court properly determined that plaintiff breached the terms of sale and that defendant-cooperative was entitled to retain the down payment as liquidated damages ( see Grace v. Nappa, 46 N.Y.2d 560, 565, 415 N.Y.S.2d 793, 389 N.E.2d 107 [1979]; see also Chaves v. Kornfeld, 83 A.D.3d 522, 921 N.Y.S.2d 64 [2011] ).

The terms of sale contained an “unambiguous non-waiver clause that courts uniformly enforce” ( Rosenzweig v. Givens, 62 A.D.3d 1, 7, 879 N.Y.S.2d 387 [2009], affd. 13 N.Y.3d 774, 886 N.Y.S.2d 845, 915 N.E.2d 1140 [2009] ). In any event, plaintiff has failed to identify any words or conduct that unequivocally evinced defendants' intent to waive his contractual obligations under the terms of sale ( see Taylor v. Blaylock & Partners, 240 A.D.2d 289, 290, 659 N.Y.S.2d 257 [1997] ).

The liquidated damages clause is valid and enforceable, and entitled the cooperative to retain plaintiff's down payment upon his failure to timely pay the balance of the purchase price or diligently submit his application to the cooperative ( see Atlantic Dev. Group, LLC v. 296 E. 149th St., LLC, 70 A.D.3d 528, 529, 895...