Savitsky v. Sukenik

• Decision Date: 16 June 1997
• Citation: 659 N.Y.S.2d 48,240 A.D.2d 557
• Parties: Ludmila SAVITSKY, Respondent, v. Aaron SUKENIK, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 48

659 N.Y.S.2d 48

240 A.D.2d 557

Ludmila SAVITSKY, Respondent, v. Aaron SUKENIK, et al., Appellants.

Supreme Court, Appellate Division Second Department.

June 16, 1997.

Frost & Berenholtz, New York City (Joseph Frost, pro se and Gary L. Berenholtz, of counsel), for appellants.

Herchenroder & Herman, Hempstead (John A. Herchenroder and Alexander Herman, of counsel), for respondent.

Before O'BRIEN, J.P., and RITTER, ALTMAN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for the return of a down payment on a contract for the sale of real property, the defendants appeal from an order of the Supreme Court, Kings County (Garry, J.), dated September 25, 1996, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof which denied the defendants' motion in its entirety and substituting therefor a provision granting those branches of the defendants' motion which were for summary judgment dismissing the plaintiff's second and third causes of action, and (2) by adding a provision thereto, that upon searching the record, summary judgment is granted to the plaintiff on her first cause of action; as so modified, the order is affirmed, without costs or disbursements.

By contract dated June 16, 1994, the plaintiff agreed to purchase from the defendant Aaron Sukenik a building located in Brooklyn, for $210,000. The contract called for a closing "no later than August 21, 1994". The plaintiff made a down payment of $50,000, which was held in escrow by counsel for Sukenik, the codefendant Joseph Frost. By letter dated July 21, 1994, the plaintiff informed the defendants that the subject building could not be used for a commercial warehouse, her intended use, and "reiterat[ed]" her demand that her down payment be returned. By letter dated August 4, 1994, Frost requested that the plaintiff advise him of a suitable date for closing or be deemed in breach of the contract as of August 21, 1994. A closing never occurred. By contract dated September 1, 1994, ten days after the closing date set forth in the contract at issue, Sukenik agreed to sell the subject property to a third party for $120,000 more than the price for which he was to sell the property to the plaintiff.

The plaintiff commenced this action, inter alia, to recover her down payment. After issue was joined, the defendants moved for summary judgment. The defendants argued, among other things, that time was made of the essence by Frost's August 4, 1994, letter and that the plaintiff, by failing to perform by August 21, 1994, breached the contract and forfeited her down payment. The plaintiff argued, inter alia, that time had not been made of the essence and that, therefore, the defendant had breached the contract by selling the building to a third-party. In the order appealed from, the court denied the defendants' motion for summary judgment.

When a contract for the sale of real property does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless of whether the contract designates a specific date for performance (see, Grace v. Nappa, 46 N.Y.2d 560, 415 N.Y.S.2d 793, 389 N.E.2d 107; Sohayegh v. Oberlander, 155 A.D.2d 436, 547 N.Y.S.2d 98; Zev v. Merman, 134 A.D.2d 555, 521 N.Y.S.2d 455, affd. 73 N.Y.2d 781, 536 N.Y.S.2d 739, 533 N.E.2d 669). What constitutes a reasonable time to perform turns on the facts and circumstances of the case (see, Zev v. Merman, supra). Time may be made of the essence by "clear, distinct and unequivocal notice to that effect giving the other party a reasonable time in which to act" (Zev v. Merman, supra, at 557, 521 N.Y.S.2d 455; see also, 3M Holding Corp. v. Wagner, 166 A.D.2d 580, 560 N.Y.S.2d 865; Sohayegh v. Oberlander, supra). Here, the contract did not make time of the essence (see, Exclusive Envelope Corp. v. Tal-Spons Corp., 187 A.D.2d 556, 590 N.Y.S.2d 222; O'Connell v. Clear Holding Co., 126 A.D.2d 530, 510 N.Y.S.2d 653; Leading Bldg. Corp. v. Segrete, 60 A.D.2d 907, 401 N.Y.S.2d 561). Further, we find, as a matter of law, that Frost's letter of August 4, 1994, was premature (see, 3M Holding Corp. v. Wagner, supra; North Triphammer Dev. Corp. v. Ithaca Assocs., 704 F.Supp. 422, 430) and failed to afford the plaintiff a reasonable time after the August 21, 1994, closing date set forth in the contract within which to perform (see, Zev v. Merman, supra). Therefore, the letter was inadequate to make time of the essence. Thus, the sale of the property to a third-party prior to the expiration of a reasonable adjournment of the plaintiff's time to perform constituted a breach of the contract at issue. Further, because the plaintiff's letter of July 21,...