This legal article provided as as public service by W. Adam Mandelbaum, Esquire, Attorney-at-Law who has his law practice at 10 Audrey Avenue, Oyster Bay, New York 11771.  He can be reached at (516) 624-0240 or go to his website:  http://justiceneversleeps.net.

"Time, Time, Time Is On Your Side -- Or Is It?  --  A provision of the contract required the sellers to deliver to the buyer a certificate of occupancy covering the building and all improvements thereto, including its finished basement.

The day before the scheduled closing, the sellers, without having obtained a certificate of occupancy for the basement, purported to adjourn the closing. The buyer, claiming, inter alia, that the sellers had breached the contract, filed suit to recover his down payment.

The appellate court held that, when the sellers sought to adjourn the "time of the essence" closing date which they themselves had set, their failure to perform constituted a material breach of the contract of sale, and the buyer was well within his rights when he refused to consent to an adjournment of the closing and instead insisted upon immediate performance of the sellers' obligations.

The buyer made a prima facie showing that the sellers materially breached the contract of sale, and that he was therefore entitled to the return of his down payment.  (This was an appeal from a decision of the Westchester Supreme Court) -- Rufeh v. Schwartz (4/22/08).

Suggestion:  Before you try to enforce "time of the essence" contracts as a seller, make sure you are READY to close and have COMPLIED with all contractual conditions.