on a cause of action for the return of a down payment on a contract for the sale of real property, the plaintiff must establish that the defendant breached or repudiated the contract and that the plaintiff was ready, willing, and able to perform on the closing date” ( Yu Ling Hu v. Zapas, 108 A.D.3d 621, 969 N.Y.S.2d 491;see Matter of Hicks, 72 A.D.3d 1085, 1086, 899 N.Y.S.2d 371;Pinhas v. Comperchio, 50 A.D.3d 1117, 857 N.Y.S.2d 616). “While a vendee can recover his [or her] money paid on the contract from a vendor who defaults on law day without a showing of tender or even of willingness and ability to perform where the vendor's title is incurably defective, a tender and demand are required to put the vendor in default where his [or her] title could be cleared without difficulty in a reasonable time” ( Cohen v. Kranz, 12 N.Y.2d 242, 246, 238 N.Y.S.2d 928, 189 N.E.2d 473 [citation omitted]; see Eurovision 426 Dev., LLC v. 26–01 Astoria Dev., LLC, 80 A.D.3d 656, 658, 915 N.Y.S.2d 288;Hegner v. Reed, 2 A.D.3d 683, 685, 770 N.Y.S.2d 87). The seller in such a case is entitled to “a reasonable time beyond law day to make his [or her] title good” ( Cohen v. Kranz, 12 N.Y.2d at 246, 238 N.Y.S.2d 928, 189 N.E.2d 473;see Hegner v. Reed, 2 A.D.3d at 684, 770 N.Y.S.2d 87). “[W]hile a purchaser must normally first tender performance and demand good title to place a seller in default, ‘when the vendor is given notice of the defect prior to the scheduled closing date and does nothing to correct it until after the closing date, the purchaser need not tender performance as such tender would be meaningless' ” ( Kopp v. Boyango, 67 A.D.3d 646, 650, 889 N.Y.S.2d 200, quoting Klaiber, LLC v. Coon, 48 A.D.3d 856, 857, 851 N.Y.S.2d 667;see also Cohen v. Kranz, 12 N.Y.2d at 245–246, 238 N.Y.S.2d 928, 189 N.E.2d 473). “[W]here a seller seeks to hold a purchaser in breach of contract, the seller must establish that [he or she] was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed t
As "it was incumbent upon the [buyers] to put the seller[s] in default by tendering performance, demanding that the seller[s] perform [their] obligations, and giving [them] a reasonable opportunity to cure the defects" (Xelo v Hamilton, 198 A.D.3d 710, 712), and the buyers never did so, the Supreme Court erred in granting the buyers' cross-motion for summary judgment on the complaint and for a hearing on the issue of damages on the cause of action to recover damages for breach of contract. Regarding the defendants' motion, inter alia, for summary judgment, as an initial matter, the buyers did anticipatorily breach the contract, since the May 23, 2018 letter terminating the contract and demanding a return of the down payment was a "'positive and unequivocal'" expression of an intent not to perform (Central Park Capital Group, LLC v Machin, 189 A.D.3d 984, 986, quoting Princes Point LLC v Muss Dev. L.L.C., 30 N.Y.3d 127, 133; see Hegner v Reed, 2 A.D.3d 683, 684). However, inasmuch as the sellers thereafter set a time of the essence closing date, they elected to ignore the buyers' breach of the contract and treat the contract as still valid (see Hegner v Reed, 2 A.D.3d at 684-685; see generally Strasbourger v Leerburger, 233 NY 55, 59).
Yet, the purchasers never fixed a time by which the seller had to perform. Further, it was incumbent upon the purchasers to put the seller in default by tendering performance, demanding that the seller perform her obligations, and giving her a reasonable opportunity to cure the defects (see Ilemar Corp. v Krochmal, 44 N.Y.2d 702, 703-704; Cohen v Kranz, 12 N.Y.2d at 246; 1581 Franklin Steel, LLC v Mineola Garden City Co., Ltd., 135 A.D.3d 718, 718-719; Hegner v Reed, 2 A.D.3d 683, 685). Pursuant to the contract, the seller specifically had 90 days after closing to cure the violations, provided that she deposited sufficient funds at closing and that such condition was acceptable to the lender.
Yet, the purchasers never fixed a time by which the seller had to perform. Further, it was incumbent upon the purchasers to put the seller in default by tendering performance, demanding that the seller perform her obligations, and giving her a reasonable opportunity to cure the defects (seeIlemar Corp. v. Krochmal, 44 N.Y.2d 702, 703–704, 405 N.Y.S.2d 444, 376 N.E.2d 917 ; Cohen v. Kranz, 12 N.Y.2d at 246, 238 N.Y.S.2d 928, 189 N.E.2d 473 ; 1581 Franklin Steel, LLC v. Mineola Garden City Co., Ltd., 135 A.D.3d 718, 718–719, 22 N.Y.S.3d 596 ; Hegner v. Reed, 2 A.D.3d 683, 685, 770 N.Y.S.2d 87 ). Pursuant to the contract, the seller specifically had 90 days after closing to cure the violations, provided that she deposited sufficient funds at closing and that such condition was acceptable to the lender.
For example, in Offner v. Engelen (Sup.Ct. 1951) 200 Misc. 53 [102 N.Y.S.2d 97], the court acknowledged “[t]here is . . . some doubt upon the question whether a vendee may maintain an action to recover a deposit, as distinguished from an action to recover damages for breach of contract, in the absence of proof that he has made a tender of the performance required of him by the contract,” but ruled for the seller, finding “[t]he weight of authority . . . holds that a vendee is not relieved from the necessity of making such a tender where it appears that there is no insurmountable difficulty in clearing the title and compliance by the vendor with the terms of the contract is not beyond his power. [Citations.]” (Id. at p. 99; see also Hegner v. Reed (App.Div. 2003) 2 A.D.3d 683 [770 N.Y.S.2d 87, 89] [“even assuming that the sellers were in breach of the contract on the day of the closing because the premises were not vacant, this alleged defect was curable within a reasonable time”]; Amity Associates, Inc. v. Amity Farms Shopping Center, Inc. (App.Div. 1960) 11 A.D.2d 811 [205 N.Y.S.2d 236, 238 [same]; Fleischer v. Lockwood Lumber Co., Inc. (App.Div. 1939) 258 A.D. 900 [16 N.Y.S.2d 205, 206] [seller “may invoke in her behalf the . . . general rule in equity that it is a sufficient answer to the claim for rescission that she is able to make her title good before decree”].) This case is an interpleader action with the sole question being which party is entitled to recover the $100,000 escrow deposit.
Yet, the purchasers never fixed a time by which the seller had to perform. Further, it was incumbent upon the purchasers to put the seller in default by tendering performance, demanding that the seller perform her obligations, and giving her a reasonable opportunity to cure the defects (see Ilemar Corp. v Krochmal, 44 N.Y.2d 702, 703-704; Cohen v Kranz, 12 N.Y.2d at 246; 1581 Franklin Steel, LLC v Mineola Garden City Co., Ltd., 135 A.D.3d 718, 718-719; Hegner v Reed, 2 A.D.3d 683, 685). Pursuant to the contract, the seller specifically had 90 days after closing to cure the violations, provided that she deposited sufficient funds at closing and that such condition was acceptable to the lender.
It is common for parties contracting for the sale of real property to agree to limit a seller's damages to the amount of the buyer's down payment ( see e.g. Beagle Devs., LLC v. Long Is. Beagle Club No. II, Inc., 63 A.D.3d 607, 608, 882 N.Y.S.2d 79 [1st Dept.2009]; Hegner v. Reed, 2 A.D.3d 683, 684–685, 770 N.Y.S.2d 87 [2d Dept.2003] ). The primary objective of this practice is to eliminate the purchaser's exposure to more costly potential damages ( see Federal Realty Ltd. Partnership v. Choices Women's Med. Ctr., 289 A.D.2d 439, 441, 735 N.Y.S.2d 159 [2d Dept.2001] ).
Decided May 4, 2004. Appeal from the 2d Dept: 2 AD3d 683. Motion for leave to appeal denied.
"For an anticipatory repudiation to be deemed to have occurred, the expression of intent not to perform by the repudiator must be ‘positive and unequivocal’ " ( id. at 133, 65 N.Y.S.3d 89, 87 N.E.3d 121, quoting Tenavision, Inc. v. Neuman , 45 N.Y.2d 145, 150, 408 N.Y.S.2d 36, 379 N.E.2d 1166 ). We agree with the Supreme Court's determination that the June 23, 2017, letter reflected a positive and unequivocal repudiation of the contract by the defendant (seeSomma v. Richardt , 52 A.D.3d 813, 814, 861 N.Y.S.2d 720 ; Hegner v. Reed , 2 A.D.3d 683, 684, 770 N.Y.S.2d 87 ; R.C.P.S. Assoc. v. Karam Devs. , 258 A.D.2d 510, 511, 685 N.Y.S.2d 261 ; Cooper v. Bosse , 85 A.D.2d 616, 618, 444 N.Y.S.2d 955 ), thereby, under the terms of the contract, entitling the plaintiffs to retain the deposit as liquidated damages for the defendant's anticipatory breach.
Contrary to the purchaser's further contention, the continued viability of the lease for an additional month after the closing date did not excuse the purchaser's performance under the contract. Rather, this alleged defect was curable within a reasonable time and, thus, the purchaser was obligated to tender performance and permit the seller the opportunity to cure. The purchaser's failure to do so bars it from recovering its deposit under the contract (see Ilemar Corp. v. Krochmal, 44 N.Y.2d 702, 703–704, 405 N.Y.S.2d 444, 376 N.E.2d 917; Cohen v. Kranz, 12 N.Y.2d 242, 246, 238 N.Y.S.2d 928, 189 N.E.2d 473; Martocci v. Schneider, 119 A.D.3d 746, 746–749, 990 N.Y.S.2d 240; Ardi v. Martin, 79 A.D.3d 1078, 1079, 915 N.Y.S.2d 106; Hegner v. Reed, 2 A.D.3d 683, 770 N.Y.S.2d 87). The purchaser's remaining causes of action were properly dismissed as duplicative of the breach of contract cause of action (see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190; Minovici v. Belkin BV, 109 A.D.3d 520, 523, 971 N.Y.S.2d 103; Lenoci v. Secure Alarm Installations, LLC, 97 A.D.3d 800, 801, 949 N.Y.S.2d 122; Deer Park Enters., LLC v. Ail Sys., Inc., 57 A.D.3d 711, 870 N.Y.S.2d 89).