Opinion
December 19, 1988
Appeal from the Supreme Court, Westchester County (Dachenhausen, J.).
Ordered that the judgment is affirmed, with costs.
The plaintiff entered into a contract dated June 18, 1986, for the purchase of the defendants' house. The plaintiff made a down payment of $31,200, of which $5,000 was to be nonrefundable "without recourse." The contract was conditioned on the plaintiff obtaining a mortgage commitment which he received on July 22, 1986. The closing date specified in the contract, September 10, 1986, passed without a written protestation from either party.
By letter dated September 29, 1986, the defendants' counsel advised the plaintiff that they were anxious to close before December 1st due to changes in the tax law. Having received no response from the plaintiff, by letter dated October 17, 1986, the defendants' counsel advised the plaintiff that time was now "of the essence" and that if the closing did not take place by November 15, 1986, they would consider the contract terminated. By letter dated November 10, 1986, the plaintiff protested, but did not suggest an alternate date for closing. The "essence" date passed and by letter dated November 17, 1986, the defendants' counsel returned a portion of the down payment in the amount of $26,200 and declared the plaintiff to be in default. The plaintiff sued for specific performance. The defendants moved for and were granted summary judgment. We now affirm.
It is well settled that a vendor of real property may convert an agreement in which time is not of the essence to one in which time is of the essence by giving clear and unequivocal notice to the vendee that a specified reasonable time for the completion of his obligation will be deemed of the essence (Shannon v Simon, 128 A.D.2d 859, lv denied 70 N.Y.2d 605; Levine v Sarbello, 112 A.D.2d 197, affd 67 N.Y.2d 780). The letter of October 17, 1986 constituted clear and unequivocal notification that time was to be of the essence with respect to closing. Moreover, it is readily apparent that the plaintiff was given a reasonable time in which to fulfill his obligations under the contract and there was no reason for his delay (see, Woodwork Display Corp. v Plagakis, 137 A.D.2d 809, lv denied 72 N.Y.2d 806; Shannon v Simon, 128 A.D.2d 859, supra; cf., Nissenbaum v Ferazzoli, 143 A.D.2d 823). Consequently, the defendants were justified in holding the plaintiff in default and, therefore, in breach of contract. Notwithstanding the elimination of the liquidated damages clause in the contract, the court correctly awarded the down payment to the defendant vendors as damages (see, Maxton Bldrs. v Lo Galbo, 68 N.Y.2d 373; Fingerhut v Kralyn Enters., 71 Misc.2d 846, affd 40 A.D.2d 595, lv denied 31 N.Y.2d 644; cf., Swezey v Marra, 143 A.D.2d 827).
We have considered the plaintiff's remaining contentions and find them to be without merit. Mollen, P.J., Eiber, Kooper and Harwood, JJ., concur.