Legg v Lowry

[*1] Legg v Lowry 2007 NY Slip Op 51026(U) [15 Misc 3d 140(A)] Decided on May 17, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-684 S C.

Melissa Legg, Respondent,

against

Susan Lowry and Brian Lowry, Appellants, -and- Ahern & Ahern, Defendant.

Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered May 12, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $10,000.

Judgment affirmed without costs.

In this action seeking the return of a $10,000 down payment for the purchase of real property, the award of the down payment to plaintiff was proper, although for reasons other than those stated by the court. When, as here, a contract for the sale of real property does not provide that time is of the essence, either party is entitled to a reasonable adjournment of the closing date, and either party may declare time to be of the essence in regard to the adjourned date "by giving a clear, distinct, and unequivocal notice along with a reasonable time for the other party to act" (Bardel v Tsoukas, 303 AD2d 344, 345 [2003]; see also 3M Holding Corp. v Wagner, 166 AD2d 580 [1990]).

The sellers, defendants Susan Lowry and Brian Lowry, had been aware, or should have been aware, that plaintiff had not been able to obtain financing from at least May 1, 2004, when plaintiff's new attorney contacted their attorney to express concern that their leasing of one of the apartments in the premises, which lease was executed after the contract was signed and in contravention thereof, would make it impossible for plaintiffs to make payments on a mortgage, if one could be obtained. Furthermore, defendants were aware by that point that the property at issue was appraised by plaintiff's mortgage broker at less than the purchase price, making [*2]financing difficult if not impossible to obtain. Under these circumstances, we find that the nine days provided in defendants' notice of May 19, 2004 were not a "reasonable time" to close (see Ben Zev v Merman, 73 NY2d 781, 783 [1988]).

Nor did defendants ever provide evidence that they would be ready, willing and able to close on the date that they themselves selected, as they never established that the premises were vacant on said date in accordance with the terms of the contract. Thus, plaintiff was properly found to be entitled to return of the down payment (see id.; see also Miller v Almquist, 241 AD2d 181 [1998]; Ennin v Carion, 230 AD2d 888 [1996]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: May 17, 2007