Adam Leitman Bailey, P.C. Attorneys Obtain Favorable Settlement for Real Property Seller Who Sought to Retain Down Payment After Purchaser Defaulted at Closings
Adam Leitman Bailey, P.C. settled a case on favorable terms for a seller of real property, recovering the majority of the down payment paid by a would-be purchaser, after the would-be purchaser defaulted on paying at the first time-of-the-essence closing scheduled by the seller and did not appear at the second time-of-the-essence closing scheduled. The case settled shortly prior to trial.
The client owned real property located in the Bronx. The client had contracted to sell the property to a buyer that had paid, to the escrow agent on the transaction, a down payment equal to ten percent (10%) of the property’s purchase price. However, the buyer later decided against the deal. The client scheduled a time-of-the-essence closing for January 2023. The buyer’s counsel appeared at the closing, and refused to close, arguing there that the seller had defaulted on the transaction, because the property allegedly was not vacant at the time of the closing, but instead was being leased out for use as a commercial parking lot, and there were car lifts on the property that the parking lot operator had used to store cars during business hours.
The buyer then sued the seller for, among other things, breach of contract and specific performance of the contract of sale. The seller scheduled a second time-of-the-essence closing. When the buyer did not appear for the second closing, the seller declared the buyer in default under the contract of sale, and counterclaimed against the buyer for, among other things, breach of contract, seeking to retain the down payment as the damages to which it was entitled under the contract.
Both the buyer and seller moved for summary judgment. Both sides’ motions were denied. However, a seller who has scheduled a time-of-the-essence sale of property may require the buyer to perform under the contract, even the seller was not, as of the closing date, ready, willing, and able to sell, if the seller could become ready, willing, and able to sell within a reasonable period of time. The court, in deciding the summary judgment motions, thus indicated that the seller would prevail if it could show that it could have removed the car lifts within a reasonable period of time if the buyer had demanded such removal.
An Adam Leitman Bailey, P.C. attorney arranged for a person with a company that prepared properties for sale, including the removal of car lifts from property, to testify, if the case went to trial, that it would have taken only a short period of time to remove the car lifts. An Adam Leitman Bailey, P.C. attorney attended a settlement conference and negotiated settlement on behalf of the client, both at that conference and between then and the scheduled beginning date of the trial. A week before the trial was to begin, the parties agreed to split the down payment in a manner favorable to the seller. Thanks to the efforts of Adam Leitman Bailey, P.C., the client obtained a favorable settlement without having to incur the costs of trial.
Brandon M. Zlotnick and John M. Desiderio worked on the client’s motions for summary judgment and the opposition to the opposing party’s summary judgment motion, and on obtaining testimony of an expert on car lift removal. Laurence M. Sklaw negotiated the settlement agreement on behalf of the client.