Opinion
October 16, 1989
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof denying the plaintiffs' cross motion for summary judgment and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed, with costs to the plaintiffs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate judgment in accordance herewith.
The contract of sale contained no clause making time of the essence. Nor did the defendants, by their attorneys' letter of August 5, 1987, make time of the essence (see, Ballen v Potter, 251 N.Y. 224, 228; O'Connell v Clear Holding Co., 126 A.D.2d 530; Tarlo v Robinson, 118 A.D.2d 561, 565). Thus, neither the plaintiffs' failure to appear at the closing on August 31, 1987 nor the defendants' apparent failure to produce a signed certificate of occupancy at that time constituted a breach of the contract. Each party should have been afforded a reasonable time by the other party in which to perform and close title (see, Grace v Nappa, 46 N.Y.2d 560, 565). However, the defendants' attorneys' letter to the plaintiffs dated September 10, 1987, declaring that the defendants deemed the contract canceled, constituted a breach of the contract and excused the plaintiffs from any duty of performance (see, Huntington Min. Holdings v Cottontail Plaza, 96 A.D.2d 526; Glauber v P.S.F.B. Assocs., 89 A.D.2d 576, 577; Stawski v Epstein, 67 A.D.2d 681; L.I.C. Commercial Corp. v Zirinsky, 142 A.D.2d 713, 715). The plaintiffs are thus entitled to summary judgment for the return of their down payment (see, Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067; CPLR 3212). Kooper, J.P., Spatt, Harwood and Rosenblatt, JJ., concur.