Sassower v. Blumenfeld

878 N.Y.S.2d 602 (2009)


On November 18, 2008, P entered into an agreement with Blumenfeld (D) whereby the D was to purchase real property for $ 1.8 million, with a deposit of $180,000 to be paid on the signing of the contract, the balance to be paid at closing. The deposit was paid and held in escrow by Ps' attorney. The contract contains the following provisions: Closing shall take place at the office of Seller's attorney at 10:00 a.m. on or about December 12, 2008, If Purchaser willfully defaults, Seller's sole remedy shall be to receive and retain the Downpayment as liquidated damages, the prevailing party shall be entitled to recover its reasonable legal fees and expenses from the other party which are incurred in such action or proceeding. D was also allowed to adjourn the closing on one or more occasion but in no event to a date beyond December 31, 2008, as time was of the essence with respect to D's obligations to close on the Adjourned Closing Date. On December 10, 2008, D requested an adjournment of the closing date until December 19, 2008, asserting that 'his lender was not ready to close.' In a letter dated, December 24, 2008, the defendant terminated the contract and asked that Ps' counsel release $180,000.00 from escrow, and return it to D. P refused and claimed the deposit as liquidated damages. P sued for such a declaration. D answered claiming that on December 11, 2008, 'without advance warning of any kind--I became aware that I had lost nearly all of my personal assets as a result of the fraudulent scheme of Bernard Madoff.