documentation of the closing." Solomon Aff. at ¶20. Solomon states that she conferred
with Muss as to how to explain the terms of this approval, which they considered to be
unconditional, to the Colacinos. Id. at ¶22. Muss decided to describe the approval as
"contingent" upon the provision of adequate documentation.
On or prior to October 15, 2009, in accordance with Mr. Colacino's instructions,
Giddins [*5]drafted a Notice of Cancellation on behalf of the
Colacinos, which is dated "October 15, 2009 (5:00 p.m.)." The Notice of Cancellation is
addressed to Ebert and states that the Colacinos are exercising their option to cancel the
Agreement pursuant to Paragraph 6.3 of the Contract because "[i]t has now been more than 30
business days since September 1 and the Corporation has still not made a decision or issued its
consent [to the Colacinos' purchase of the Apartment]." The Notice of Cancellation further states
that the Colacinos request the return of the Security Deposit. The Notice of Cancellation was
personally delivered to Ebert on October 15, 2009, at "approximate [sic] 5 o'clock plus or minus
15 minutes or so " (Ebert dep. 44) and was also sent via facsimile prior to 5:00 p.m.
By e-mail dated October 15, 2009, 5:10 p.m., Muss informed the Colacinos that their
application was approved by the Board contingent upon the sale of the Beach Street Residence. It
appears that Muss and Solomon were informed of the Notice of Cancellation within one or two
days.
In a letter to Ebert dated October 20, 2009 ("Andrews' Letter"), Andrews writes that
"the [Colacinos have] elected to cancel the [Agreement] by a notice dated October 15, 2009," and
she requests that Ebert release to her the Security Deposit as liquidated damages based on "the