Lederberg v Hindo

[*1] Lederberg v Hindo 2006 NY Slip Op 52567(U) [14 Misc 3d 1230(A)] Decided on August 16, 2006 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 16, 2006
Supreme Court, New York County

Vera Lederberg, Plaintiff,

against

Nader Hindo and Leon Seidman, Defendants.



600690/06

Carol R. Edmead, J.

In this breach of contract action, defendants Nader Hindo ("Hindo") and Leon Seidman ("Seidman") (collectively "defendants"), move for an order, pursuant to CPLR 3212, dismissing the complaint of plaintiff Vera Lederberg ("plaintiff"), and granting summary judgment on defendants' counterclaim against plaintiff, thereby directing and declaring that Seidman shall release to Hindo, and that Hindo is entitled to retain as liquidated damages, the down payment previously delivered by plaintiff, and thereafter held in escrow by Seidman. Defendants seek such relief under the contract of sale between Hindo and plaintiff, on the ground that there is no material issue of fact concerning plaintiff's default under the contract of sale. Plaintiff opposes defendants' motion in its entirety.

Background

On or about September 2, 2005, Hindo entered into a contract with Hudson Waterfront Company A, LLC (the "Sponsor") to purchase a residential condominium apartment 14P at 240 Riverside Boulevard, New York, New York in the building known as "The Heritage at Trump Plaza" (the "Unit"). Also on September 2, 2005, Hindo and plaintiff entered into a contract of sale under which Hindo agreed to sell the Unit to plaintiff for the sum of $735,000 (the "Contract of Sale"). Pursuant to the Contract of Sale, plaintiff delivered to Hindo a down payment of $73,500, constituting 10% of the purchase price ("Downpayment"), to be held in escrow by Seidman, Hindo's attorney. Paragraph 13(a) of the Contract of Sale, entitled "Defaults and Remedies," states, in pertinent part, the following:

(a) If Purchaser [plaintiff] defaults hereunder, Seller's [Hindo] sole remedy shall be to retain the Downpayment as liquidated damages, it being agreed that Seller's damages in case of Purchaser's default might be impossible to ascertain and that the Downpayment constitutes a fair and reasonable amount of damages under the circumstances and is not a penalty. (b) If Seller defaults hereunder, Purchaser shall have such remedies as Purchaser shall be entitled to at law or in equity....[*2]

Furthermore, pursuant to Paragraph 39 of the Contract of Sale, the parties understood that Hindo did not actually own the Unit, but instead had a contract to purchase the Unit with the Sponsor. Paragraph 39 states that [p]urchaser [plaintiff] understands that he [sic] is purchasing new construction and that the Seller [Hindo] has not yet closed on her [sic] purchase of the Unit. Seller's obligation to close hereunder, therefore, is conditioned on his closing on the Unit. Seller represents that she [sic] will not wilfully default on her [sic] obligation to close on her purchase of the Unit. If Seller does not close, for any other reason, Seller's liability hereunder will be limited to the return of the Downpayment to Purchaser and neither party will have any further rights or obligations hereunder.

Paragraph 40 of the Contract of Sale provided that the closing under which plaintiff would purchase the Unit from Hindo would take place thirty days after the date Hindo closed on the purchase of the Unit with the Sponsor. Paragraph 40 states that

[s]upplementing Paragraph 4 of the printed form of contract,[FN1] Purchaser [plaintiff] understands that Seller [Hindo] has not yet received notice as to a date when Seller will close on the purchase of the Unit from the Sponsor. Seller will notify Purchaser of the closing date when Seller receives the notice from the Sponsor. The parties agree that the closing date for this Unit will be thirty days after the date on which Seller closes on the purchase of this Unit.

Following the execution of the Contract of Sale, Hindo engaged in e-mail communications with plaintiff's husband, Mr. Togut, regarding the possibility of an assignment of Hindo's purchase agreement with the Sponsor to plaintiff. Both Hindo and plaintiff acknowledge that such an assignment would have been beneficial for both parties: Hindo asserts that he would have been spared the "headaches of closing on a mortgage," while the plaintiff recognizes that she would have benefitted from the speed by which her purchase could occur under an assignment compared to the standard method of purchase.

Subsequently, on December 2, 2005, Hindo closed on the purchase of the Unit with the Sponsor, more than two months after the first scheduled closing date had been canceled by Hindo. This closing went unaccompanied by any assignment to plaintiff. On December 8, 2005, Seidman allegedly mailed a letter to plaintiff notifying her that Hindo had purchased the Unit, and requesting that plaintiff schedule a closing date for her purchase of the Unit.[FN2]

Thereafter, on December 30, 2005, plaintiff's attorney sent a letter to Seidman, which stated that "[n]o advance notice of [the closing on the Unit] was ever given to [plaintiff] as required by the Para. 40 of the Contract [of Sale]. Accordingly, [plaintiff] has defaulted under the Contract [of Sale]." This letter went on to declare that plaintiff chose to remedy Hindo's default by rescinding the Contract of Sale and demanding the "immediate return of the Contract [of Sale] Deposit of $73,500, plus interest from the date of deposit, that [Seidman is] holding as [*3]Escrowee under Para. 16 of the Contract [of Sale]."

In response by letter, dated January 10, 2006, Seidman objected to plaintiff's request for a return of the Downpayment, and stated Hindo's belief that plaintiff was obligated to close on the Unit pursuant to the Contract of Sale. Subsequently, on January 18, 2006, Seidman allegedly sent another letter to plaintiff acknowledging plaintiff's December 30, 2005 letter to Seidman, and notifying plaintiff that if she did not close by February 27, 2006, "time being of the essence," Hindo would "terminate this transaction and retain the Downpayment" as liquidated damages.[FN3] Plaintiff commenced the present action on February 28, 2006.

Contentions of the Parties

The Defendants' Motion

Defendants assert that Hindo was ready, willing and able to transfer title of the Unit to plaintiff pursuant to the terms of the Contract of Sale, and the only reason the closing did not occur was because plaintiff no longer wanted to purchase the Unit.

Defendants also contend that plaintiff's principle argument for rescission is unavailable to plaintiff since Hindo's alleged technical failure to provide "advance notice" was not "so substantial and fundamental" that it defeated the object of the parties in making the contract, and since this alleged breach did not "go to the root of the contract."

Furthermore, defendants contend that since Hindo and the Sponsor closed on the Unit on December 2, 2005, and, pursuant to Paragraph 40 of the Contract of Sale, the plaintiff could not close on the Unit until thirty (30) days after such closing, plaintiff's December 30, 2005 letter, wherein plaintiff expressed her desire to rescind the Contract of Sale, rendered the advance notice requirement irrelevant.

In addition, defendants assert that since the closing date specified in Paragraph 40 of the Contract of Sale was not a "time of the essence" closing date, any delay in the performance of such contract is not a material breach that would entitle plaintiff to a rescission. Also, since the closing date was not "time of the essence," plaintiff cannot validly claim to have relied on such a date, and both parties were entitled, as of right, to an adjournment of the closing date. Since plaintiff had over two months after she learned of Hindo's closing with the Sponsor to close on the Unit, her failure to do so is a material breach, having nothing to do with an alleged lack of advance notice, and entitling Hindo to retain the Downpayment.

The Plaintiff's Opposition

Plaintiff contends that summary judgment should be denied as a matter of law because defendants clearly defaulted on provisions of the Contract of Sale through technical and material breaches. Plaintiff further contends that discovery is needed to gather evidence pertinent to plaintiff's allegations that defendants violated the implicit good faith and fair dealing clauses of the Contract of Sale, potentially permitting plaintiff the legal remedy of recision and a right to the return of the deposit.

In further opposition, plaintiff points out that although Hindo was required to have Seidman place the Downpayment in an interest-bearing escrow account for the benefit of the parties, Siedman placed the Downpayment into an unsegregated IOLA account that did not bear [*4]interest.

Second, plaintiff asserts that Hindo breached Paragraph 14 of the Contract of Sale in that none of the notices given or allegedly given by or on behalf of Hindo in connection with the Contract of Sale were delivered by registered or certified mail.

Third, plaintiff contends that Hindo's failure to provide plaintiff with the required advance notice of Hindo's December 2, 2005 closing with the Sponsor, pursuant to paragraph 40 of the Contract of Sale, was a material breach since such notice was needed by plaintiff to further her purchase of the Unit in a timely manner. Plaintiff asserts that defendants have not provided any evidence of the required advance written notice. Further, defendants' claim that plaintiff's then-attorney, Mr. Auslander, had been notified by Seidman of the impending closing are belied by the fact that Seidman was previously informed that Mr. Auslander was no longer plaintiff's attorney. Further, if notice was given as claimed by defendants, it was clearly not given according to the terms laid out in Paragraph 14 of the Contract of Sale, as it was not sent by certified or registered mail. The only letter plaintiff acknowledges receiving regarding Hindo's closing with the Sponsor was Seidman's letter dated January 23, 2006. Plaintiff points out that since Hindo's closing with the Sponsor was not made available online (via the Office of the City Register) until February 13, 2006, plaintiff was prevented from verifying that the closing did in fact occur until such date.

Fourth, plaintiff contends that defendants violated the good faith and fair dealing clauses of the Contract of Sale by allegedly delaying a closing with the Sponsor on multiple occasions for unjustifiable reasons. Plaintiff notes that Hindo was initially scheduled to close with the Sponsor on September 27, 2005, financed by a loan from Chase Bank. Plaintiff contends that Hindo canceled this closing by securing more favorable lending terms from Pan Am Mortgage, which would "save [him]self a few bucks." Plaintiff also contends that this is a violation of good faith and fair dealing in that both parties understood that the deal was supposed to happen expeditiously. Furthermore, the delays caused a hardship for plaintiff as the favorable interest rate that had been in effect when the purchase was contemplated was no longer in effect at the time that Hindo was prepared to sell. Plaintiff points out that the March 7, 2006 "time is of the essence" closing date set by Hindo was six months after the Contract of Sale was signed.

Fifth, plaintiff contends that Hindo deliberately misled plaintiff regarding the possibility of an "assignment" by which Hindo could "re-assign the sale of the property to [plaintiff] without closing on it." Plaintiff asserts that the assignment offer was not genuine, but merely a means of buying time to keep plaintiff from rescinding on the Contract of Sale by providing the false hope that the transaction would occur in a timely fashion. Plaintiff supports this allegation by noting Hindo's inconsistent references to the possibility of an assignment, such as Hindo rescinding the offer in October and then suggesting that it was again a possibility at the end of November. Plaintiff additionally notes that the Sponsor stated that it "does not do re-assignments, period." Also, plaintiff maintains that although defendants asserted that it was plaintiff's responsibility to secure Sponsor's consent for an assignment, she was not in "privity of contract" with the Sponsor and thus had no standing to request Sponsor's consent for the assignment. Further, plaintiff contends that she was never notified that any action on her part was required to facilitate the assignment process. Plaintiff believes that since an assignment did not occur, despite the clear financial advantages such an arrangement would have provided [*5]Hindo, such an arrangement was never a possibility, but rather was fabricated by defendants.

Also concerning the alleged assignment arrangement between Hindo and plaintiff, plaintiff contends that the possibility of an assignment was proposed by Hindo as a means of securing permission for Hindo to reside in the Unit for a period of at least one month after assigning the Unit to plaintiff. Plaintiff suggests that Hindo had never intended to stay only one month, as initially proposed. Support for this allegation comes from Hindo's proposal to furnish the Unit, Hindo moving into the Unit shortly after closing with the Sponsor, and Hindo continuing to reside in the Unit. Additionally, Hindo asserted on a Chase Bank questionnaire that he intended to use the Unit as his "primary residence" for a period of one year, beginning within sixty (60) days following the purchase. Plaintiff contends that the such behaviors of Hindo indicate that Hindo had been treating the Contract of Sale as an option to sell to plaintiff, which he only exercised when it became expedient to do so, qualifying such behavior as a breach of the duty of good faith and an anticipatory breach of the Contract of Sale.

Sixth, plaintiff asserts that Hindo ignored the "time of the essence" notice sent by plaintiff in an email dated November 8, 2005 to Hindo's broker. Although the exact words, "time is of the essence," were not included in the email, such email, which was written by a non-lawyer, unfamiliar with the standard jargon, contained the equivalent message. That message specified that the closing needed to take place by the end of that week. Hindo's actual closing date with the Sponsor missed the deadline by three weeks, and was 10 weeks beyond the original closing date of September 27, 2005, which Hindo had canceled.

Seventh, plaintiff asserts that Hindo defaulted on the Contract of Sale by entering into the mortgage loan with Chase Bank, which contains terms and conditions conflicting with the terms of the Contract of Sale. Specifically, the Chase Bank mortgage necessitated that Hindo occupy the Unit as his "primary residence" beginning within 60 days of the closing and remaining for a period of at least one year. Additionally, the mortgage specified that there not be any claims against the property that were not of public record, which is inconsistent with the fact that the Contract of Sale provided plaintiff with a claim against the property. Furthermore, plaintiff notes that Hindo's obligation to reside in the Unit would have made inoperable the provision of the Contract of Sale that stated that Hindo had the "full right, power and authority to sell, convey and transfer the [Unit]."

Finally, Plaintiff opposes defendants' summary judgment motion by contending that documents needed to oppose summary judgment are in the exclusive control of the defendants, including (1) Hindo's Purchase Agreement, (2) Hindo's mortgage loan applications to Chase Bank and Pan Am Mortgage, (3) all documents delivered at Hindo's December 2, 2005 closing, and (4) all documents relating to each requested, proposed, or scheduled closing of Hindo's purchase of the Unit, including those relating to any closings contemplated with Pan Am Mortgage.

Analysis

Summary Judgment

To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor (see CPLR 3212(b)). It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (id.), sufficient [*6]to warrant the court as a matter of law to direct judgment in his or her favor (see Bush v. St. Claire's Hosp., 82 NY2d 738, 739 [1993]; see also Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v. National Amusements, Inc., 2003 NY Slip Op. 51390(U) [Sup Ct, New York County, Oct. 21, 2003]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (see Winegrad, 64 NY2d 851, supra ; see also Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Silverman v. Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept. 2003]; Thomas v. Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002] [defendant not entitled to summary judgment where he failed to produce admissible evidence demonstrating that no triable issue of fact exists as to whether plaintiff would have been successful in the underlying negligence action]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings[,] and by other available proof, such as depositions" (CPLR 3212(b)). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (see Zuckerman, 49 NY2d 557, supra ; see also Prudential Securities Inc. v. Rovello, 262 AD2d 172 [1st Dept. 1999]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (see CPLR 3212(b)). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (see Vermette v. Kenworth Truck Co., 68 NY2d 714, 717 [1986]; see also Zuckerman, 49 NY2d 557, supra ; Forrest v. Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept. 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (see Zuckerman, 49 NY2d 557, supra ). The opponent "must assemble and lay bare [her] affirmative proof to demonstrate that genuine issues of fact exist[,]" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (Kornfeld v. NRX Technologies, Inc., 93 AD2d 772 [1st Dept. 1983], affd, 62 NY2d 686 [1984]).

Furthermore, mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (see Alvord and Swift v. Steward M. Muller Constr. Co, 46 NY2d 276, 281-82, 413 NYS2d 309 [1978]; see also Fried v. Bower & Gardner, 46 NY2d 765, 767, 413 NYS2d 650 [1978]; Platzman v. American Totalisator Co., 45 NY2d 910, 912, 411 NYS2d 230 [1978]; Mallad Const. Corp. v. County Fed. Sav. & Loan Assn., 32 NY2d 285, 290, 344 NYS2d 925 [1973]; Plantamura v. Penske Truck Leasing, Inc., 246 AD2d 347, 668 NYS2d 157 [1st Dept. 1998]).

Thus, as the movant, defendants must make a prima facie showing that plaintiff's causes of action lack merit, as a matter of law. Plaintiff's eight causes of action against Hindo alleges that, as a result of Hindo's breach of the Contract of Sale, breach of his duty of good faith, or fraudulent inducement, she is "entitled to a judgment rescinding the Contract and ordering defendant Seidman to refund the Downpayment, plus accrued interest thereon...." Plaintiff also alleges three (3) separate causes of action against Seidman for breach of contract on various [*7]grounds, breach of duty of good faith, and fraudulent inducement.

The defendants establish that Hindo purchased the Unit from the Sponsor on December 2, 2005 and sent a "time of the essence" letter to plaintiff on January 23, 2006, naming March 7, 2006 as a law date for closing on the Unit with Hindo.

However, defendants, as the proponents for summary judgment, failed to establish that plaintiff's "cause of action . . . has no merit" (CPLR § 3212 [b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v. St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v. National Amusements, Inc., 2003 NY Slip Op. 51390(U) [Sup Ct New York County, Oct. 21, 2003]).

Where a buyer wrongfully refuses to close title under a contract for the sale of real property, "[s]eller's damages are measured by the difference between the purchase price and the market value of the property" (1776 Associates Corp. v. Broadway West 57th Street Assoc., 181 AD2d 601, 585 NYS2d 316 [1st Dept 1992], citing Friedman, Contracts and Conveyances of Real Property § 12.1, at 504, [2d ed 1963]). As an alternative, the seller may retain the buyer's down payment as liquidated damages (id.). It is also well settled that a prospective purchaser may not recover his down payment where he wrongfully fails to go to closing (1776 Associates Corp. v. Broadway West 57th Street Assoc., supra , citing Maxton Builders v. Lo Galbo, supra ; Lawrence v. Miller, supra ). However, rescission, as alleged by plaintiff, is permitted for, inter alia, repudiation of the contract or for a breach that substantially defeats the purpose of the contract (Callanan v. Keeseville, Ausable Chasm and Lake Champlain Railroad Co., 199 NY 268 (1910). As to rescission, as a general rule, rescission is permitted for such breaches that are material and willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract. Failure to perform in every respect is not essential, but a failure which leaves the subject of the contract substantially different from what was contracted for is sufficient" (Callanan v. Powers, 199 NY 268 [1910]).

In the absence of discovery, it cannot be said, at this juncture, that Hindo's failure to give advance notice of his closing with the Sponsor, as alleged in the first cause of action, was not a material and willful breach, or, if not willful, not substantial and fundamental; nor can it be said that Hindo's failure did not defeat the object of the parties in making the contract (Septembertide Publishing, B.V., v. Stein and Day, Inc., 884 F2d 675, 678, quoting Callaman v. Powers, 199 NY 268, 284).

Defendants also failed to demonstrate that the time of essence notice was sent pursuant to 14 of the Contract of Sale, which provides: 14.Notices: Any notice, request or other communication ("Notice") given or made hereunder (except for the notice required by para. 12), shall be in writing and either (a) sent by any of the parties hereto or their respective attorneys, by registered or certified mail, return receipt requested, postage prepaid, or (b) delivered in person or by overnight courier, with receipt acknowledged, to the address given at the beginning of this Contract for the party to whom the Notice is to be given, or to such other address for such party as said party shall hereafter designate by Notice given to the other party pursuant to this para. 14, or c) with [*8]respect to para. 6(a)(viii) or para. 18(b), sent by fax to the party's attorney. Each Notice mailed shall be deemed given on the third business day following the date of mailing the same and each Notice delivered in person or by overnight courier shall be deemed given when delivered. A copy of each notice sent to a party shall also be sent to the party's attorney. Each notice sent by fax shall be deemed given when transmission is confirmed by the sender's fax machine. The attorney[]s for the parties are hereby authorized to give and receive on behalf of their clients all Notices and deliveries.

Although defendants claim that Siedman "transmitted a letter to Lederberg on or about December 2, 2005," defendants fail to assert the manner in which the transmission occurred.

Further, issues exists as to whether Hindo's failure to provide plaintiff with proper advance notice of his closing with the Sponsor constitutes a breach, thereby relieving plaintiff of the obligation to close. Arguably, discovery may disclose that Hindo's breach was material, as plaintiff required time to get her affairs in order so that she could complete the purchase of the Unit within 30 days of Hindo's closing with the Sponsor. In the event Hindo's breach is deemed substantial, disclosure may indicate that Hindo's delays were wilful.

An issue of fact also exists as to whether Hindo deliberately misled plaintiff regarding the assignment with the Sponsor and Hindo's true motivations for delaying his purchase of the Unit from the Sponsor. Hindo's alleged conduct, in addition to plaintiff's assertion that it was understood among the parties that the purpose of the contract was to effect the transaction in a timely manner, presents an issue of fact regarding defendants' compliance with the implicit good faith and fair dealing clause of every contract. "[E]very contract contains an implied obligation by each party to deal fairly with the other and to eschew actions which would deprive the other party of the fruits of the agreement" (Miller at 184, quoting Greenwich Vil. Assocs. v. Salle, 110 AD2d 111, 115). Although a claim for breach of the implied covenant of good faith and fair dealing cannot substitute for an unsustainable breach of contract claim (Triton Partners v. Prudential Sec., 301 AD2d 411 [2003]), it cannot be said that plaintiff's claim that Hindo breached the Contract of Sale lacks merit.

Further, issues of fact remain regarding, inter alia, the "time of the essence" notice allegedly sent by plaintiff to defendant Seidman on November 8, 2005. While it has been held that less than five business days is inadequate notice (see Barstow Grace Apartments, Inc., v. Merlis, 11 Misc 3d 1053(A)), the First Department has asserted that "there are no bright-line criteria establishing the reasonableness of a particular time period, and insofar as the nuances of each case are different, relevant precedents outcomes are not necessarily dispositive" (Miller v. Almquist, 241 AD2d 181, 186-187 [1998]). The reasonableness of a particular time period depends upon factors such as "the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of hardship or prejudice to either one" (Id. at 185). Whether plaintiff's purported "time of the essence" notice was properly sent and whether a reasonable amount of time was given by which Hindo was required to close with the Sponsor are issues to be explored during discovery.

The Court is not required to determine whether any single issue of fact presented by the plaintiff (e.g., lengthy delays in closing on the part of the defendants, alleged misrepresentation regarding the potential assignment option, failure to provide the advanced notice), considered alone and assumed true, is sufficient to establish that plaintiff was entitled to rescind on the [*9]Contract of Sale and thus receive the return of her deposit. However, such allegations, taken together, raise issues as to whether Hindo failed to comply with material terms of the Contract of Sale, including the implicit good faith obligation. Therefore, defendants' motion for summary judgment is denied.

Based on the foregoing, it is hereby

ORDERED that defendants' motion for summary judgment is denied; and it is further

ORDERED that the parties shall appear for a preliminary conference on September 26, 2006, 2:15 p.m.

This constitutes the decision and order of the Court.

Dated: August 16, 2006_____________________________

Hon. Carol R. Edmead, J.S.C. Footnotes

Footnote 1: Paragraph 4 of the Contract of Sale, entitled "Closing of Title," states, in pertinent part, that "[t]he closing documents referred to in para. 6 shall be delivered, and payment of the balance of the Purchase Price shall be made, at the closing of title ("Closing"), to be held on [intentional blank] at [intentional blank], at the offices of....."

Footnote 2: In Paragraph 30 of plaintiff's complaint, she denies receipt of this letter.

Footnote 3: Seidman sent additional letters to plaintiff on January 23, 2006 and allegedly on February 2, 2006, each containing the same text as the January 18, 2006 letter, except that the January 23, 2006 letter requested that plaintiff close by March 7, 2006, and the February 2, 2006 letter requested that plaintiff close by March 6, 2006.