Practice point: A letter from the plaintiff-buyer’s attorney to the defendant-seller’s
attorney advised that the buyer was prepared to close "on any date . . .
within the next ten days," and that the buyer would make himself available
"at any time and location so designated by you." The letter also
asked the seller’s attorney to contact the buyer’s attorney within the next ten
days to schedule a closing date. Contrary to the plaintiff's contention, the
letter was held to be nothing more than a mere demand that the defendant fix a
closing date. It was inadequate to make time of the essence because it did not
clearly and distinctly set a new date and time for closing, and it did not
inform the defendant that he would be considered in default if he did not
perform by a given date.
Student note: Since there was never a time of the essence closing, nor even
a future scheduled closing date, it could not be concluded that the seller
willfully defaulted or was unable to tender performance.
Case: Latora v. Ferreira, NY
Slip Op 00309 (2d Dept. 2013).
Here is the decision.
Tomorrow’s issue: Emotional distress without physical harm, and motions to
dismiss.
