Chappaqua Building Corp. v. RGF Development Corp.

173 A.D.2d 671, 571 N.Y.S.2d 1008, 1991 N.Y. App. Div. LEXIS 8193

Opinion

In an action for the recovery of the down payment on a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Coppola, J.), dated October 17, 1989, which granted the defendant’s motion for summary judgment dismissing the complaint, and denied its cross motion for summary judgment.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that the language of the subject contract, together with the parties’ conduct, established that the initial closing date specified by the contract was not intended to be a "time of the essence” date. Accordingly, the defendant was entitled to a reasonable adjournment to complete performance of its obligations under the contract (see, 3M Holding Corp. v Wagner, 166 AD2d 580; 4200 Ave. K Realty Corp. v 4200 Realty Co., 123 AD2d 419). The plaintiffs refusal to grant a reasonable adjournment thus constituted a wrongful repudiation of the contract, which bars the plaintiff from recovery of its down payment (see, Leading Bldg. Corp. v Segrete, 60 AD2d 907). Thompson, J. P., Eiber, Miller and Ritter, JJ., concur.