Plotch v 375 Riverside Dr. Owners, Inc.

Plotch v 375 Riverside Dr. Owners, Inc. 2012 NY Slip Op 00906 Decided on February 9, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 9, 2012
Tom, J.P., Sweeny, Acosta, Renwick, Román, JJ.
6765 602909/07

[*1]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.

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 NY2d 560, 565 [1979]; see also Chaves v Kornfeld, 83 AD3d 522 [2011]).

The terms of sale contained an "unambiguous non-waiver clause that courts uniformly enforce" (Rosenzweig v Givens, 62 AD3d 1, 7 [2009], affd 13 NY3d 774 [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 AD2d 289, 290 [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 AD3d 528, 529 [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 [*2]Child Care Assn., 45 NY2d 913, 915 [1978]; Pelton v 77 Park Ave. Condominium, 38 AD3d 1, 10 [2006]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 9, 2012

CLERK