Opinion
February 28, 1994
Appeal from the Supreme Court, Nassau County (Segal, J.).
Ordered that the judgment is reversed, on the law, with costs, the order is vacated, the cross motion is denied, the plaintiffs' motion for summary judgment is granted to the extent that the plaintiffs are entitled to retain the defendants' down payment on the contract as liquidated damages, the motion is otherwise denied, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment in the plaintiffs' favor authorizing them to retain the defendants' down payment of $25,000.
We find, as a matter of law, that the defendants' notice dated February 10, 1990, fixing February 16, 1990, as the law day, with time of the essence, failed to provide the plaintiffs with a reasonable time in which to close (see, Ben Zev v Merman, 73 N.Y.2d 781; Knight v. McClean, 171 A.D.2d 648). As a result, the plaintiffs were entitled to a reasonable adjournment of the closing date "without the passage of the law day amounting to an incurable contractual default" (Tarlo v. Robinson, 118 A.D.2d 561, 565; see, 3M Holding Corp. v. Wagner, 166 A.D.2d 580; Sohayegh v. Oberlander, 155 A.D.2d 436). Therefore, the plaintiffs' failure to produce the necessary certificates and permits on February 16, 1990, did not render them in default.
We further find that because the necessary certificates and permits were obtainable by the plaintiffs within a reasonable time, and the defendants were aware that they could not be obtained prior to the law day, the defendants' refusal to provide the plaintiffs with a reasonable time to obtain them was tantamount to an anticipatory breach (see, Oxford Funding Corp. v. James H. Northrup, Inc., 130 A.D.2d 722; GDJS Corp. v. 917 Props., 99 A.D.2d 998). Therefore, the plaintiffs are entitled to retain the defendants' $25,000 down payment, pursuant to the contract of sale. Sullivan, J.P., Joy, Friedmann and Goldstein, JJ., concur.