Monthly Archives: December 2018

Now that I have your attention:  Litigation abounds over the right to keep/return the deposit when a real estate transaction fails.  Several recent examples follow:

Ward Capital Mgt. LLC v. New Pelham Parkway N. LLC, 2018 NY Slip Op 06797, App. Div. 1^st Dept. (October 11, 2018)

Supreme Court granted defendants’ motion for summary judgment dismissing the complaint; granted their counterclaims to retain plaintiff’s $1 million downpayment; and denied plaintiff’s cross-motion for summary judgment.

The Appellate Division, as follows, summarily affirmed:

Defendants made a prima facie showing of their entitlement to judgment as a matter of law. They submitted evidence that the contract of sale between the parties for the sale of four real estate properties clearly stated that “time is of the essence” as to the closing date and that, through an amendment to that contract, the parties scheduled the closing for October 18, 2013. Defendants also provided evidence that all parties appeared at the proposed closing on that date, defendants were ready, willing and able to close, and plaintiff did not have the liquid cash to pay the purchase price…Since the real estate contract provided that the time of closing is of the essence, performance on the specified date was a material element and plaintiff’s failure to perform on that date constituted material breach[.]

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