Opinion
2012-02-9
Adam Paul PLOTCH, Plaintiff–Appellant, v. 375 RIVERSIDE DRIVE OWNERS, INC., et al., Defendants–Respondents.
Paula A. Miller, P.C., Smithtown (Paula A. Miller of counsel), for appellant. Cantor, Epstein & Mazzola, LLP, New York (Rachael E. Gurlitz of counsel), for respondents.
Paula A. Miller, P.C., Smithtown (Paula A. Miller of counsel), for appellant. Cantor, Epstein & Mazzola, LLP, New York (Rachael E. Gurlitz of counsel), for respondents.
TOM, J.P., SWEENY, ACOSTA, RENWICK, ROMÁN, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered July 8, 2010, which granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for summary judgment on his breach of contract, conversion, and unjust enrichment causes of action, unanimously affirmed, with costs.
The terms of sale for the purchase of the cooperative apartment unit unambiguously stated that the balance of the purchase price must be paid within 30 business days from the date of sale, and that “time is of the essence” with respect to the closing date. Contrary to plaintiff-purchaser's contention, the lack of a date certain in the terms of sale did not render the “time is of the essence” provision invalid or unenforceable. Because the record establishes that plaintiff failed to submit the balance of the purchase price within 30 days of the auction, the court properly determined that plaintiff breached the terms of sale and that defendant-cooperative was entitled to retain the down payment as liquidated damages ( see Grace v. Nappa, 46 N.Y.2d 560, 565, 415 N.Y.S.2d 793, 389 N.E.2d 107 [1979]; see also Chaves v. Kornfeld, 83 A.D.3d 522, 921 N.Y.S.2d 64 [2011] ).
The terms of sale contained an “unambiguous non-waiver clause that courts uniformly enforce” ( Rosenzweig v. Givens, 62 A.D.3d 1, 7, 879 N.Y.S.2d 387 [2009], affd. 13 N.Y.3d 774, 886 N.Y.S.2d 845, 915 N.E.2d 1140 [2009] ). In any event, plaintiff has failed to identify any words or conduct that unequivocally evinced defendants' intent to waive his contractual obligations under the terms of sale ( see Taylor v. Blaylock & Partners, 240 A.D.2d 289, 290, 659 N.Y.S.2d 257 [1997] ).
The liquidated damages clause is valid and enforceable, and entitled the cooperative to retain plaintiff's down payment upon his failure to timely pay the balance of the purchase price or diligently submit his application to the cooperative ( see Atlantic Dev. Group, LLC v. 296 E. 149th St., LLC, 70 A.D.3d 528, 529, 895 N.Y.S.2d 392 [2010] ).
Summary judgment was properly granted as to the individual defendants, since there was no evidence that any of them engaged in any independent tortious conduct ( see Murtha v. Yonkers Child Care Assn., 45 N.Y.2d 913, 915, 411 N.Y.S.2d 219, 383 N.E.2d 865 [1978]; Pelton v. 77 Park Ave. Condominium, 38 A.D.3d 1, 10, 825 N.Y.S.2d 28 [2006] ).
We have considered plaintiff's remaining contentions and find them unavailing.